In re Seumanu

Filed 3/27/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re
ROPATI AFATIA SEUMANU A169146

on Habeas Corpus. (Alameda County Super. Ct.
Nos. HCH24057A1, H24057A)

ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT

BY THE COURT:
The court orders that the opinion filed on March 11, 2024, be modified as
follows:
1. On page 27, in the second sentence of the third paragraph change
the word “pass” to “passes” so the sentence reads:

None of these claims passes the debatable-among-jurists-of-
reason test for substantiality.

2. On page 28, in the first sentence of the first full paragraph, insert
the phrase “while he was gambling with a group of other juveniles”
after the words “as a 14-year-old” so the sentence reads:

In claim one, Seumanu argues he was denied a fundamentally
fair penalty phase trial because his trial counsel failed to object to
the prosecution’s characterization of a fight Seumanu was
involved in as a 14-year-old while he was gambling with a group
of other juveniles.

The modifications effect no change in the judgment.

Dated: March 27, 2024 BROWN, P. J.

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Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Thomas Stevens

Counsel: 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.

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Filed 3/11/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re
ROPATI AFATIA SEUMANU A169146
on Habeas Corpus. (Alameda County Super. Ct.
Nos. HCH24057A1, H24057A)

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 (Briggs) and In re Friend (2021) 11 Cal.5th 720

1 All further statutory references are to the Penal Code. All references
to court rules are to the California Rules of Court.

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(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 (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) (conc. opn. of Bedsworth,
J.), we add some additional observations about the applicant’s burden to

2
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 (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.) 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.)
In addition, the jury found that for all three felonies, Seumanu used a
firearm, to wit, a shotgun. (§ 12022.5; Seumanu, at p. 1302.) 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.)
The California Supreme Court affirmed his convictions and death sentence on
automatic appeal. (Seumanu, supra, 61 Cal.4th at p. 1377.)

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 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, and more recently from our First District, Division Three colleagues in
Friend II, supra, 76 Cal.App.5th at p. 639, 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

4
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.)
“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.)
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

5
the range of the sentencer’s discretion” (for example, the petitioner 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; § 1509, subd. (a).) The superior court must issue “a statement of
decision explaining the factual and legal basis for its decision” resolving any
such petition (§ 1509, subd. (f)), subject to review in the Court of Appeal
(§ 1509.1). The availability of an appeal from the denial of habeas corpus
relief in capital cases is new. Under pre-Proposition 66 law—which remains
the law in non-capital cases—“there [wa]s no right to appeal a superior
court’s denial of habeas corpus relief.” (Briggs, supra, 3 Cal.5th at p. 825.) A
capital habeas corpus petitioner could only obtain a second look at the
superior court’s refusal to grant habeas relief by filing a new habeas petition
in a higher court, while the People could appeal a grant of relief in a capital
case directly to the California Supreme Court. (Ibid.)
“Proposition 66 alter[ed] these procedures by permitting either party to
take an appeal from a superior court’s decision on an initial habeas corpus
petition to the Court of Appeal, and by specifying that ‘[a] successive petition
shall not be used as a means of reviewing a denial of habeas relief.’ ” (Briggs,
supra, 3 Cal.5th at p. 825; § 1509.1, subd. (a).) For a petitioner seeking
review of the denial of a successive petition, an appeal may not be taken as of
right. Section 1509.1(c) states, “The petitioner may appeal the decision of the

6
superior court denying relief on a successive petition only if the superior
court or the court of appeal grants a [COA].”
To obtain a COA, a petitioner must show both “a substantial claim for
relief . . . and a substantial claim that the requirements of subdivision (d) of
Section 1509 have been met.” (§ 1509.1(c).) There are also rules governing
the timing of decisions on COA requests. The superior courts must decide
whether to grant or deny a COA “concurrently with a decision denying relief
on the petition.” (§ 1509.1(c).) And when a COA is sought on appeal—as it
must be where, as in this case, a notice of appeal from the denial of relief on a
successive petition arrives in the appellate court without a COA from the
superior court—“The court of appeal shall grant or deny a request for a
certificate of appealability within 10 days of an application for a certificate.”
(Ibid.)
III. REQUEST FOR COUNSEL APPOINTMENT
First, we attend to an administrative housekeeping matter—
Seumanu’s request for appointment of Snedeker and Short as his counsel in
these appellate proceedings. We will grant that request.2 For any such

2 The check-the-box request for appointment of counsel in Seumanu’s

notice of appeal provided no information complying with rule 8.391. That
rule sets minimum standards for appointment of counsel in appeals under
section 1509.1 from superior court decisions in death penalty-related habeas
corpus proceedings. On February 14, 2024, we directed that Seumanu
provide sufficient information to demonstrate Snedeker and Short have “the
commitment, proficiency, and knowledge necessary to represent [him]
competently” in this court under rule 8.652(i), which establishes a
qualification standard specifically applicable to counsel appointments for the
purpose of exhausting state court remedies where there has been a prior
federal appointment. We also directed that Seumanu himself file a
declaration in compliance with rule 8.391(a)(3) requesting continued
representation by Snedeker and Short. On March 1, 2024, we received

7
appointment, rule 8.391(a)(3) requires that we “designate assist[ing]
counsel.” We designate Snedeker and Short to assist each other in these
proceedings.
In granting Seumanu’s request for appointment of counsel on appeal,
we emphasize that we have no statutory basis to authorize payment of
compensation to counsel at this time. The declaration filed by Snedeker in
support of Seumanu’s appointment request acknowledges that this is “the
current California norm for exhaustion petitions in the Courts of Appeal,”
and further states “I hope to be eventually paid by the federal court, since
this [appeal] is a necessary step in the process of presenting Mr. Seumanu’s
claims to the state court, a prerequisite to their being considered on the
merits in federal court.” Though practices may vary in other federal districts,
it is our understanding that the hope expressed in Snedeker’s declaration—a
hope we share—is consistent with the practice currently being followed in the
United States District Court for the Northern District of California.
IV. THE TEN-DAY TIME LIMIT TO GRANT OR DENY COA
REQUESTS IN THE COURT OF APPEAL

Turning the merits of the COA request, we must decide as a threshold
matter whether the 10-day time-limit on the grant or denial of COA requests
in the Court of Appeal under section 1509.1(c) is mandatory or directory. The
Supreme Court’s landmark opinion in Briggs v. Brown, supra, 3 Cal.5th 808,
addressed that issue for other fixed time limits imposed by Proposition 66—
the five-year deadline for direct and collateral review in capital cases and the
one-year deadline for deciding capital habeas petitions, deadlines which the

declarations from Snedeker and Seumanu providing satisfactory information
in compliance with these rules.

8
court held are directory (id. at pp. 848–861)—but it did not address the 10-
day limit in section 1509.1(c). Because we must “consider, sua sponte,
whether we have appellate jurisdiction” (Pacific Corporate Group Holdings,
LLC v. Keck (2014) 232 Cal.App.4th 294, 301 (Keck)), we now address the 10-
day limit in this case.
Friend I establishes the procedural backdrop. Addressing the
“procedures for appellate review of a trial court’s determination that one or
more claims in a subsequent petition are successive” (Friend I, supra,
11 Cal.5th at p. 745), Friend I holds that “Proposition 66 can and should be
read to provide a means for appealing the superior court’s determination that
a subsequent petition is successive.” (Friend I, at p. 747.) The court finds the
authority for such appeals in section 1509.1(c). (Friend I, at p. 747.) Thus,
even where the superior court has denied a COA on the merits of the claims
in a subsequent petition that has been found to be successive, the Court of
Appeal may issue a COA under section 1509.1(c) on “the successiveness
question itself.” (Friend I, at p. 747.)
In such a scenario—which describes this case—section 1509.1(c) states
that a Court of Appeal “shall” grant or deny a COA request within 10 days of
the time such a request is made. (See rule 8.392(b)(6) [10-day deadline runs
from date of “the filing of the request in [the Court of Appeal]”].) We received
Seumanu’s notice of appeal on November 27, 2023, and since he checked a
box in the notice requesting a COA, the 10-day clock began to run that day.
Because more than 10 days have elapsed since then, we must decide whether
the deadline specified in section 1509.1(c) is jurisdictionally mandatory, and
thus whether automatic dismissal of Seumanu’s COA request is required
based on the passage of time alone.

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 On December 1, 2023, we requested the Attorney General to file a brief
addressing this issue. With the caveat that the language of section 1509.1(c)
might be read to create a 60-day jurisdictional deadline starting from the
date a notice of appeal is filed in the superior court, the Attorney General
took the position that “the 10-day limitation of section 1509.1, subdivision (c)”
is not jurisdictional and “may be exceeded for good cause.”3 We agree, but we
also reject the idea that section 1509.1(c) specifies any jurisdictionally
mandatory decisional deadline.
In an order issued December 5, 2023, we announced this ruling and
invited any party who disagrees to seek immediate relief by writ in the
Supreme Court. That order stated as follows: “The court has concluded that
the 10-day period in . . . section 1509.1(c) for a court of appeal to grant or
deny a request for a certificate of appealability is directory, not mandatory.
. . . The court has further concluded that Penal Code section 1509.1,
subdivision (c) does not require the court to decide the request for a certificate
of appealability within 60 days after appellant filed a notice of appeal in the
superior court. As expeditiously as possible, the court intends to issue an
order explaining in more detail the basis for these conclusions.” Neither
party objected to our announced ruling or sought emergency relief. This
opinion provides the more fulsome explanation of reasons we indicated would
be forthcoming.

3 In a footnote, the Attorney General drew our attention to language in

section 1509.1(c) stating that “[t]he jurisdiction of the court of appeal is
limited to the claims identified in the [COA] and any additional claims added
by the court of appeal within 60 days of the notice of appeal.” In light of this
language, the Attorney General noted, “it is arguable that a failure to grant
an application for a certificate within the 60-day time frame could raise
jurisdictional issues.”

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 The reasoning in Briggs compels the conclusion we have reached. The
Briggs opinion began its discussion by acknowledging the Legislature’s power
to regulate the speed at which adjudication in the courts takes place. (Briggs,
supra, 3 Cal.5th at pp. 848–849.) To illustrate, the court pointed to
commonly used provisions that grant “priority to certain matters” and
require courts to “conduct proceedings as speedily as possible.” (Ibid.) But
the court then went on to discuss Garrison v. Rourke (1948) 32 Cal.2d 430,
and a long line of similar cases that construe statutes as directory in some
circumstances, even when the Legislature uses the language of command.
(Id. at pp. 849–854.)4 The Garrison line of cases recognizes that “while the
Legislature has broad authority to regulate procedure, the constitutional
separation of powers does not permit statutory restrictions that would
materially impair fair adjudication or unduly restrict the courts’ ability to
administer justice in an orderly fashion.” (Briggs, supra, 3 Cal.5th at p. 854;
see People v. Engram (2010) 50 Cal.4th 1131, 1146–1149, 1161–1162.)
When addressing the question whether a statute that appears to
command courts to proceed in a specified manner is mandatory or directory,
these cases adopt a clear statement rule of construction in order to avoid the
constitutional separation of powers concerns that such commands create.
(Briggs, supra, 3 Cal.5th at pp. 877–878 (conc. opn. of Liu, J.).) In cases
involving fixed decisional time limits, an “intent to divest the court of
jurisdiction ‘is not read into the statute unless that result is expressly
provided or otherwise clearly intended.’ ” (Briggs, at p. 835.) “[T]he

4 See Thurmond v. Superior Court of City and County of San Francisco

(1967) 66 Cal.2d 836, 839; Lorraine v. McComb (1934) 220 Cal. 753, 756–757;
In re Shafter-Wasco Irrigation District (1942) 55 Cal.App.2d 484, 487–489
(Shafter-Wasco); see also Verio Healthcare, Inc. v. Superior Court (2016)
3 Cal.App.5th 1315, 1329.

11
legislative intent must be gathered from the statute as a whole, from the
nature and character of the act to be done and from the consequences which
would follow the doing or not doing of the act at the required time.”
(Garrison v. Rourke, supra, 32 Cal.2d at p. 437.) And in undertaking this
analysis, the pivotal issue is often whether there is a consequence or penalty
for missing the deadline. If no consequence or penalty is provided, a
statutory time limit will be deemed directory. (Briggs, at p. 849.)
Ultimately, the absence of any enforcement mechanism is what drove
the Briggs court’s analysis. After reviewing the text and structure of the
statutory deadlines at issue, as well as pertinent ballot materials that
accompanied Proposition 66, the Briggs court concluded that, since neither
the five-year deadline specified by section 190.6, subdivision (d), nor the one-
year deadline specified by section 1509, subdivision (f), is subject to any
enforceable consequences when the statutory deadline is missed, each statute
is directory. (Briggs, supra, 3 Cal.5th at pp. 858–860.) The Briggs court did
not address the provision in section 1509.1, subdivision (c), requiring Courts
of Appeal to decide requests for COAs within specified periods of time. But
among the cases cited and relied upon in Briggs was In re Shafter-Wasco,
supra, 55 Cal.App.2d 484, a case involving a statutory decisional deadline to
decide an appeal.
Shafter-Wasco involved a motion to dismiss an appeal that was not
decided within three months, the specified time period for deciding appeals of
the kind at issue there. The court stated the issue presented as follows: “May
the Legislature divest this court of its constitutional jurisdiction over the case
and its duty to decide it by limiting the time in which a decision must be
rendered, to a period within which it is impracticable, if not impossible, to
decide the issues?” (Shafter-Wasco, supra, 55 Cal.App.2d p. 487.) Answering

12
that question no, the court observed, “We find but one limitation in the
Constitution on the time within which an appeal must be decided. (§ 24, art.
VI, Const.) The penalty there provided for failing to decide a case within
ninety days after it has been submitted for decision is not loss of jurisdiction
over the case by the court, but suspension of the right of the justices to draw
their salaries.” (Ibid.)
The court went on: “If the statute in question be strictly construed as
mandatory and as divesting this court of jurisdiction in three months after
the appeal was taken,” resolution of the appeal would have been required
“one month and two days after the record was filed . . . , three days after
appellant’s opening brief was filed and twenty-seven days before respondents’
brief was due for filing.” (Shafter-Wasco, supra, 55 Cal.App.2d at p. 487.)
“We regard such a limitation on our constitutional power to decide the case as
unreasonable,” the Shafter-Wasco court stated. (Ibid.) “While the record is
not formidable it is not inconsiderable. While we have not examined it, there
may be presented serious questions for decision that might require careful
consideration which could not be given within the time provided by the
statute.” (Ibid.)
The same thing may be said here, even though in deciding a COA
request under section 1509.1(c) we need only delve into the merits of a
proposed appeal provisionally. No appellate court makes decisions on the fly.
For each judge, reading submitted briefs and coming to some rough sense of
likely outcome is only the beginning of the process.5 In-depth review of cited

5 See Hon. Frank M. Coffin, The Ways of a Judge: Reflections from the

Federal Appellate Bench (1980) page 62 (Ways of a Judge) (“Perhaps there
are appellate judges who, on hearing the essential facts of . . . a case, can
confidently announce a sound decision without pause. I have seen professors

13
cases and the record is the next step, which requires considerable time. The
deliberative time required for good collegial decision making will often
require extensive intra-panel consultations, orally and in writing, even for
writs and motions that may ultimately be resolved by summary order. And
in coming to final decision, the time needed for reflection is a must, especially
for first-impression legal issues that are being decided without the benefit of
controlling precedent. Except for the constitutionally mandated 90-days-
from-submission deadline, no one-size-fits-all timeframe can be placed on the
decisional process.6
All of this is especially true in the context we have here, since the
stakes in capital litigation are so high. It is even conceivable that, contrary
to voters’ intent in seeking to accelerate the review of death judgments under
the Proposition 66 scheme, rigid compliance with a fixed decisional
timeframe in resolving COA requests could have the unintended consequence
of lengthening the overall process of collateral review, rather than speeding it
up. Pressed by the need to make a quick call in the face of a hard deadline,
some courts could default to issuing a COA on all plausible grounds for error
where there is insufficient time to probe the substantiality of a proposed
appeal.

in the classroom so respond; also panelists, lecturers, and cocktail-party
pundits. But I am thankful nothing said under such circumstances affects
the rights of the parties.”).
6 Coffin, Ways of a Judge, supra, at page 61 (In appellate decision

making, “there is rarely such a thing as a mandatory deadline. If a court has
trouble in developing a consensus, it waits until it has a majority—until each
judge in the fullness of his [or her] reflections and the freedom of his [or her]
conscience takes [a] final stand. The process allows scope for maturation, the
slow, subconscious germination of thought.”).

14
 Accordingly, because section 1509.1(c) provides “no effective
mechanism” to enforce the 10-day period (see Briggs, supra, 3 Cal.5th at
p. 855), and because strict enforcement of the 10-day period “would
materially impair fair adjudication” of this case and unduly restrict our
ability to “administer justice in an orderly fashion” (id. at p. 854), we hold
that the 10-day deadline in section 1509.1(c) is directory, not mandatory. To
the extent the language of section 1509.1(c) can be read to impose a
jurisdictional 60-day deadline running from the filing of a notice of appeal in
the superior court, we hold that that time period, too, is directory.
These two specified time periods provide aspirational benchmarks that
must be taken into account in applying the overall directive under
section 1509.1(c) that “[a]n appeal under this subdivision shall have priority
over all other matters and be decided as expeditiously as possible.” The 30-
day jurisdictional deadline to file a notice of appeal under section 1509.1(c), of
course, remains applicable, and the super priority over “all other matters”
that appellate proceedings authorized by section 1509.1(c) must receive—
which is extraordinary in itself—cannot be ignored. But if more than 10 or
even 60 days is reasonably necessary for proper consideration of whether a
COA may issue, the time may be taken.
V. ENTITLEMENT TO A COA
Construing Seumanu’s application for a COA from us as a request for a
COA on the successiveness determination by the trial court—that is, a COA
directed to the “successiveness question itself” (Friend I, supra, 11 Cal.5th at
p. 747)—we now turn to a review of this issue under the standard for
issuance of a COA in section 1509.1(c). As noted above, section 1509.1(c)
provides as follows: “A certificate of appealability may issue under this
subdivision only if the petitioner has shown both a substantial claim for relief

15
. . . and a substantial claim that the requirements of subdivision (d) of
Section 1509 have been met.”
In applying this standard, it is tempting to move immediately to the
second element—the substantiality of the petitioner’s claim that the
“requirements of subdivision (d) have been met,” and to deny a COA
summarily in all cases not involving a claim of actual innocence or
ineligibility for the death penalty. But in appeals of the “successiveness
question itself,” the Friend I court held that the COA standard “may be read
to permit a certificate ‘to issue when the petitioner has set forth a substantial
argument that section 1509(d) does not apply at all’ ” because the petition at
issue is not successive. (Friend I, supra, 11 Cal.5th at pp. 746–747.)
Accordingly, our sole focus here is on whether Seumanu has made a
substantial showing that his unexhausted claims are not “successive” within
the meaning of section 1509(d). A “substantial showing” does not require a
showing that, at this preliminary stage, convinces us the appellant is likely to
prevail. Our colleagues in Friend II noted but did not rule on what this
standard requires. We must address it here, since one of the claims at
issue—claim four, at least in one respect as we explain below—pleads
ineffective assistance of counsel with enough particularity to support a
determination of non-successiveness on that ground.
Initiative measures “are subject to the ordinary rules and canons of
statutory construction.” (Hermosa Beach Stop Oil Coalition v. City of
Hermosa Beach (2001) 86 Cal.App.4th 534, 549.) When interpreting
statutory language, a court may “compare the provision to the construction
given other similar statutes” (Nakamura v. Superior Court (2000)
83 Cal.App.4th 825, 834), including federal statutes when they have similar

16
“ ‘objectives and relevant wording’ ” (People ex rel. Allstate Ins. Co. v.
Weitzman (2003) 107 Cal.App.4th 534, 563). Here, we have an analogous
federal statute. A COA procedure in the federal Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, is markedly similar
to the COA procedure in section 1509.1(c).
Under AEDPA, an appeal may be taken from “the final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court” (28 U.S.C. § 2253(c)(1)(A)) only if “a circuit
justice or judge issues a certificate of appealability” (28 U.S.C. § 2253(c)(1)).
To meet the standard for issuance of a COA under this statute, the prisoner
must make a “substantial showing of the denial of a constitutional right.”
(28 U.S.C. § 2253(c)(2).) In Slack v. McDaniel (2000) 529 U.S. 473 (Slack),
the United States Supreme Court held that “[w]hen the district court denies
a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” (Id. at p. 484.)
Borrowing from the top court’s approach to section 2253(c) of AEDPA,
we hold that the substantiality standard under section 1509.1(c) is met where
the COA applicant makes a case strong enough for reasonable judges to
debate whether the trial court’s successiveness ruling was incorrect.
A. Successiveness as Construed and Applied in Friend I
In applying the “substantial claim for relief” test under
section 1509.1(c), what does the undefined statutory term “successive” mean?
Friend I supplies the answer. “Several decades ago,” the Friend I court
explained, “California courts identified presentation of claims in a

17
‘ “piecemeal [manner] by successive proceedings” ’ as an abuse of the writ
process.” (Friend I, supra, 11 Cal.5th at pp. 727–728.) To deal with this
problem, courts developed “the so-called successiveness bar, a set of limits
that . . . continues to apply to noncapital cases today.” (Id. at p. 728.)
Construing the codification of this bar in section 1509(d), the Friend I court
held that the statute only mandates dismissal of claims that were
unjustifiably omitted from an initial petition. (Friend I, supra, 11 Cal.5th at
p. 741.)
Before reaching this conclusion, the court set the stage with an in-
depth discussion of pre-Proposition 66 law. (Friend I, supra, 11 Cal.5th at
pp. 730–733.) The key issue in abuse of the writ cases pre-dating Proposition
66, the court explained, was whether the petitioner failed to bring claims in
an initial petition that, “even with reasonable diligence, could not have been
discovered and presented earlier.” (Friend I, at p. 741.) To identify and deal
with these circumstances, courts engaged in a two-step analysis. (Id. at
pp. 728–729.) Even in cases where a petitioner could not adequately justify
failing to raise a claim earlier, there was traditionally a second step to the
analysis where courts would entertain successive claims on the merits in
exceptional circumstances. “At this second step . . . court[s] would determine
whether the petitioner had made a showing that the successive claim fell
within [a] . . . fundamental miscarriage of justice exception set out in In re
Clark (1993) 5 Cal.4th 750 (Clark).” (Friend II, supra, 76 Cal.App.5th at
p. 631.)
Mindful of this traditional two-step analytical framework, the Friend I
court construed the statutory term “successive” in the sense courts have
always construed it. (Friend I, supra, 11 Cal.5th at pp. 730–733.) The court
held that not every “subsequent” petition—that is, not every new petition

18
brought chronologically after an “initial” petition—will be deemed
“successive” within the meaning of section 1509(d). (Friend I, at pp. 734–
736.) A showing of adequate justification for omitting a claim in an “initial”
petition will mean that, if brought promptly upon discovery in a subsequent
petition, new claims will not be “successive” and thus will not be subject to
the section 1509(d) bar. A broader interpretation that would rigidly block
habeas corpus petitioners from gaining access to court regardless of any
justification that the petitioner may have had for failing to assert new claims
earlier, the court held, would raise “substantial constitutional doubts.”
(Friend I, at p. 739.)7
While it is “rare” and “unusual” to see a successful showing of non-
successiveness (Friend I, supra, 11 Cal.5th at p. 728), Friend I holds that
capital habeas petitioners can establish adequate justification for omitting
claims from an initial petition in three circumstances, each drawn from prior
abuse of the writ cases. First, non-successiveness is established “ ‘where the
factual basis for a claim was unknown to the petitioner and he had no reason

7 Some amici curiae in Friend I (Friend I, supra, 11 Cal.5th at p. 729)

advocated a sweeping interpretation of “successive”—essentially a “one-strike
and you’re out” rule—that would have rigidly foreclosed claims “based on
newly available evidence of trial misconduct by jurors, the prosecutor,
defense counsel, or the trial judge” where the misconduct was “serious
enough to call into question the validity of the judgment, yet fail[ed] to meet
section 1509(d)’s innocence or ineligibility standard.” (Id. at p. 735.)
“Similarly,” the court explained, the broad reading urged by these amici
would have barred claims where “posttrial scientific developments . . .
yield[ed] evidence that critically undermine[d] confidence in the jury verdict
without establishing innocence or death ineligibility.” (Ibid.) These were
some of the concerns that led the court to accept the argument that a
“narrower understanding of Proposition 66’s successiveness provisions is not
only plausible, but compelled by the canon of constitutional avoidance.” (Id.
at p. 734.)

19
to believe that the claim might be made’ and the claim is ‘asserted as
promptly as reasonably possible.’ ” (Id. at p. 731.) Second, in cases involving
“claims based on a change in the law that is retroactively applicable to final
judgments,” promptly asserted claims in a subsequent petition for habeas
relief will be considered if the application of preexisting law would be
prejudicial. (Ibid.) “And finally, the ineffective assistance of prior counsel
may justify raising a claim in a subsequent petition.” (Ibid.)
Even for petitions found to be successive, the second step of the
analysis provides the ultimate backstop—an exception for miscarriages of
justice.8 Traditionally, this exception, which was fully enunciated in Clark,
supra, 5 Cal.4th at pp. 795–798, applied in four circumstances: “(1) that error
of constitutional magnitude led to a trial that was so fundamentally unfair
that absent the error no reasonable judge or jury would have convicted the
petitioner; (2) that the petitioner is actually innocent of the crime or crimes of
which the petitioner was convicted; (3) that the death penalty was imposed
by a sentencing authority which had such a grossly misleading profile of the
petitioner before it that absent the trial error or omission no reasonable judge
or jury would have imposed a sentence of death; (4) that the petitioner was

8 In its order of dismissal, the trial court uses the term “safety valve” to

describe Clark’s miscarriage of justice circumstances. That is somewhat
imprecise. The Friend I court consistently used the term “safety valve” to
describe exceptions to the general rule of successiveness in abuse of the writ
cases. (Friend I, supra, 11 Cal.5th at pp. 728, 729, 736, 741.) These
exceptions apply at the front end of the analysis, and for petitions not deemed
to be successive, they render the successiveness bar inapplicable. The Clark
miscarriage of justice circumstances, by contrast, which more generally apply
to the entire abuse of the writ doctrine, only kick in at the back end of the
analysis, after a petition has been determined to be successive. In light of
that analytical distinction, and to avoid confusion, we refer to the Clark
miscarriage of justice circumstances as a “backstop,” not as a “safety valve.”

20
convicted or sentenced under an invalid statute.” (Ibid.; see Friend I, supra,
11 Cal.5th at p. 728.) Under Clark, these claims could be “considered on their
merits even though presented for the first time in a successive petition or one
in which the delay has not been justified.” (Clark, at p. 798.) But section
1509(d) deletes the first and third miscarriage of justice circumstances under
the Clark test.
As section 1509(d) was construed and applied in Friend I, the statute
“preserves the traditional two-step inquiry described in case law, but at the
second step it replaces the four-part fundamental miscarriage of justice
exception with just two grounds—actual innocence or death ineligibility—
that will justify giving a habeas corpus petitioner a second chance to raise a
claim . . . unjustifiably omitted from a prior petition.” (Friend I, supra,
11 Cal.5th at pp. 729, 739–740.) Thus, in the end, the court struck a careful
balance. Applying the traditional understanding of the term “successive” to
section 1509(d) respects and leaves room for the constitutionally protected
right of capital prisoners to seek habeas corpus relief (Friend I, at p. 736),9
but at the same time carries out the voters’ intent in seeking to tighten the
procedural standards governing capital habeas litigation.
Summing up its analysis, the Friend I court stated, “the voters’ intent in
using the term ‘successive’ in section 1509(d) was to build on, rather than
fundamentally reconfigure, the concept of ‘successiveness’ as it has developed

9 California Constitution, article I, section 11 (“Habeas corpus may not

be suspended unless required by public safety in cases of rebellion or
invasion.”); see Friend I, supra, 11 Cal.5th at p. 736 (“The California
Constitution has protected the right to seek relief by habeas corpus since our
state’s founding”; and the right to invoke the writ, which “ ‘often represents a
prisoner’s last chance to obtain judicial review’ of a criminal conviction,” is
“an avenue to relief in service of principles of substantial justice”).

21
in the case law.” (Friend I, supra, 11 Cal.5th at p. 741.) “Rather than
presume the voters intended a sea change in habeas corpus law that would,
for the first time, eliminate the established safety valve for claims that could
not have reasonably been raised earlier,” the court said, “we instead conclude
they determined to tighten the standards courts have developed to deter
abuse of the writ of habeas corpus by making it harder for capital petitioners
to earn a second chance to raise claims they could, and should, have raised
earlier.” (Ibid.)
One last aspect of Friend I must be kept in mind. In applying the
nuanced reading of the statutory term “successive” adopted in that case, it is
important to underscore that the decision in Friend I was statutory in nature.
Although the doctrine of avoiding decision on constitutional questions played
a major role in the Supreme Court’s approach to statutory construction, the
court emphasized it was not “definitively resolv[ing]” the constitutional
questions raised by foreclosing all but the first attempt at obtaining collateral
review, excepting only cases of actual innocence or ineligibility for capital
punishment. (Friend I, supra, 11 Cal.5th at p. 736.) Most pertinently for this
case, as we explain below, the court also took care to note that it was not
addressing any constitutional questions raised by that narrowing of Clark’s
backstop miscarriage of justice exception, as applied in future cases. (Id. at
p. 740, fn. 14 [“[n]o issue regarding the constitutionality of this change is
raised here . . . and we express no opinion on the matter”].)10

10 Briggs makes a similar point about future, as-applied constitutional

challenges. (See Briggs, supra, 3 Cal.5th at p. 848 [“Going forward, prisoners
may seek to challenge such limitations in the context of their individual
cases. We express no view on their prospects for relief, holding only that the
modifications imposed by section 1509 do not materially impair the
functioning of the courts.”]; id, at p. 868 (conc. opn. of Liu, J.) [“the

22
 B. Ineffective Assistance of Counsel as a Justification for Failure
To Assert the Unexhausted Claims In the Initial Petition
Seumanu makes no contention that the factual bases of his nine
unexhausted claims were unknown to him in 2012 or that some retroactive
change in the law justifies his omission of those claims from the Initial
Petition. Rather, under the third prong of Friend I’s test for successiveness,
he argues that his former post-conviction counsel was constitutionally
ineffective for failing to raise them. For that reason, he contends, he was
adequately justified in omitting these claims from the Initial Petition, and
the trial court erred in concluding to the contrary.
The applicable Sixth Amendment standard here is well-established. To
succeed with a claim of ineffective assistance of counsel, Seumanu must make
an initial showing that some act or omission by his counsel “ ‘fell below an
objective standard of reasonableness’ ” (In re Long (2020) 10 Cal.5th 764, 773
(Long)), when judged “in light of ‘the professional norms prevailing when the
representation took place’ ” (Long, at p. 773; see Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland)). Then there is the further requirement
of showing prejudice. It is necessary to “show ‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’ ” (Long, at p. 773.) Here, Seumanu “need not show that
counsel’s deficient conduct more likely than not altered the outcome in the
case.” (Strickland, at p. 693.) It is enough to show “a probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.)
On the element of deficient performance, “ ‘[T]he standard for judging
counsel’s representation is a most deferential one.’ ” (Long, supra, 10 Cal.5th

constitutionality of Proposition 66’s restrictions on successive petitions . . .
has yet to be fully tested”].)

23
at p. 773, quoting Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).)
“We ‘must indulge a “strong presumption” that counsel’s conduct falls within
the wide range of reasonable professional assistance because it is all too easy
to conclude that a particular act or omission of counsel was unreasonable in
the harsh light of hindsight.’ ” (Long, at p. 773.) “ ‘Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of materials
outside the record, and interacted with the client, with opposing counsel, and
with the judge.’ ” (Ibid.) “Accordingly, we must ‘reconstruct the
circumstances of counsel’s challenged conduct, and . . . evaluate the conduct
from counsel’s perspective at the time.’ ” (Id. at pp. 773–774.)
In capital habeas proceedings, the pleading standard applicable to both
prongs of the Strickland test is strict. “To justify a second or subsequent
filing based on prior ineffective assistance of counsel, the petitioner must
‘allege with specificity the facts underlying the claim that the inadequate
presentation of an issue or omission of any issue reflects incompetence of
counsel . . . . Moreover, mere omission of a claim “developed” by new counsel
does not raise a presumption that prior habeas corpus counsel was
incompetent, or warrant consideration of the merits of a successive petition.’ ”
(Friend I, supra, 11 Cal.5th at p. 731, fn. 5.) Expounding on Friend I’s
discussion of this pleading standard, the Friend II court held that Strickland
must be applied in the capital habeas context “ ‘with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary
process the right to counsel is meant to serve.’ ” (Friend II, supra,
76 Cal.App.5th at p. 637, quoting Richter, supra, 562 U.S. at p. 105.) By
scrupulously applying Strickland and imposing a strict pleading
requirement, courts can “guard against easy sidestepping of the

24
successiveness bar” and promote the goals of Proposition 66’s death penalty
reforms. (Friend II, at p. 637.)
One additional aspect of the holding in Friend II is especially relevant
here. Not only must the Strickland standard be applied scrupulously, the
Friend II panel explained, but “it [is] equally important” that a capital
habeas corpus petitioner’s request to the Court of Appeal for a COA “ ‘include
copies of reasonably available documentary evidence supporting the claim,
including pertinent portions of trial transcripts and affidavits or
declarations.’ ” (Friend II, supra, 76 Cal.App.5th at p. 637, quoting People v.
Duvall (1995) 9 Cal.4th 464, 474.) “[T]he pre-Proposition 66 practice of
simply citing to transcript pages in the record is unhelpful to a meaningful
evaluation of whether the requisite substantial claims have been presented.”
(Friend II, at p. 637.)
One approach to meeting this burden might be to “lodge” the “capital
record on appeal . . . with the appellate court” (Friend II, supra,
76 Cal.App.5th at p. 628), but the governing rules of court do not currently
require it. Indeed, under those rules, the process of preparing the record in a
section 1509.1 appeal does not even begin until a COA issues. (See
rule 8.395(c)(2)(A).)11 In the meantime, indiscriminately providing the entire
record of prior capital proceedings may well be counterproductive. Selectivity
is always important in effective advocacy, but in the context of COA requests

11 If and when the record is prepared, it may be vast. It must include not
only the clerk’s transcript (rule 8.395(d)) and the reporter’s transcript
(rule 8.395(e)), but the record of the automatic appeal and prior habeas
proceedings (rule 8.395(a)(1)(E)). And the documents to be included in the
clerk’s transcript must include not only documents filed with the trial court,
but documents lodged with the trial court. (Rule 8.395(a)(1)(F).)

25
in section 1509.1 appeals, it is especially important given the exigencies of
resolving these requests.12
While there is no requirement that putative appellants in section
1509.1 appeals provide a full record of all prior proceedings in support of
their COA requests, we do need enough of the record to conduct a meaningful
assessment of the successiveness ruling the petitioner attacks as erroneous.
In order to facilitate expeditious resolution of COA requests in accordance
with our statutory obligations, the burden lies with the movant to provide
adequate supporting record materials at the time COA requests are filed so
that we may determine whether the substantiality standard under section
1509.1(c) has been met.

12 Declarations addressing the performance prong of the Strickland

ineffective assistance of counsel test will at a minimum be required for us to
make an assessment of successiveness issues that turn on ineffective
assistance of counsel. Beyond that, what a petitioner should submit to
support a COA in a proposed section 1509.1 appeal will vary widely
depending on the type of claims presented. To illustrate based on the claims
proposed for appeal in this case, some of Seumanu’s claims are purely legal
(i.e., claims seven, eight and nine) and, for record support, probably need
nothing more than judicially noticeable background facts from the California
Supreme Court’s opinion on direct appeal; other claims focus on the voir dire
of particular prospective jurors (e.g., claims four, five and six) and, for record
support, probably require only a handful of reporter’s transcript pages and
juror questionnaires; while the remaining claims (e.g., claims one, two and
three) focus on ineffective assistance issues that require assessments of
prejudice under the Strickland test. Among these different types of claims,
only the latter group—where an assessment of prejudice is in play—require
anything resembling review and understanding of the full record of prior
proceedings. And even for claims requiring an assessment of prejudice, there
may be any number of ways of providing a “snapshot” of the case as
submitted to the jury without giving us the entire, gargantuan record of all
prior proceedings, such as, for example, providing only excerpts of reporter’s
and/or clerk’s transcripts covering closing arguments, jury instructions, jury
questions or verdicts, and any section 190.4, subdivision (e) determination.

26
 The need to support appellate COA requests with record materials
adequate for meaningful evaluation, in our view, is but a specific application
of a more fundamental principle of appellate practice. “It is well settled . . .
that a party challenging a judgment [or order] has the burden of showing
reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d
564, 574.) “ ‘ “A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.” ’ ” (Jameson v. Desta (2018) 5 Cal.5th
594, 609.)
C. Claim-by-Claim Successiveness Analysis
We now turn to a claim-by-claim discussion of Seumanu’s unexhausted
claims, considering for each claim whether he has established an adequate
justification for failing to raise these claims in the Initial Petition. In
compliance with rule 8.392(b)(3), which requires that a COA request to the
Court of Appeal “must identify the petitioner’s claim or claims for relief and
explain how the requirements of Penal Code section 1509(d) have been met,”
Seumanu attaches to his COA request a brief he filed in the trial court
setting forth the arguments on which he relies. We now address those
arguments.
For claims one, two, three, and five through nine, we conclude
Seumanu has not “made a substantial showing that the claim is not
successive within the meaning of section 1509(d)” (Friend I, supra, 11 Cal.5th
at p. 748) and we will decline to issue a COA. None of these claims pass the
debatable-among-jurists-of-reason test for substantiality. Because Seumanu
has failed to meet the stringent pleading standard applicable to claims of
ineffective assistance of counsel, and in several instances has failed to give us
record materials sufficient for us to conduct meaningful review, “there is
nothing for reasonable jurists to debate” (Friend II, supra, 76 Cal.App.5th at

27
p. 637). With respect to one aspect of claim four, however, the pleaded
allegations and the record are specific enough for us to conclude the
substantial showing test has been met. We will therefore issue a COA for
claim four, in part.
1. Claim One
In claim one, Seumanu argues he was denied a fundamentally fair
penalty phase trial because his trial counsel failed to object to the
prosecution’s characterization of a fight Seumanu was involved in as a 14-
year-old. It was prosecutorial misconduct to portray this incident as
aggravating when in fact it was mitigating, Seumanu contends. According to
him, the confrontation that triggered the incident was not relevant for the
alleged gambling—there was no evidence of that, he points out—but for the
fight which ensued, which left him badly beaten and brain-damaged from a
blow inflicted by a baseball bat.
In support of claim one, Seumanu argues that his former post-
conviction counsel’s failure to raise the issue of the prosecutor’s
mischaracterization of the “gambling” incident was ineffective assistance.
The trial court was unpersuaded. After noting that, on direct appeal, the
California Supreme Court rejected several claims of prosecutorial misconduct
for lack of prejudice, the court expressed skepticism that “counsel’s inclusion
of this . . . claim among the existing litany of claims of prosecutorial
misconduct would have turned the tide in his favor.”
According to the trial court, trial counsel’s awareness of possible brain
damage—an awareness he confirmed in a declaration—led him to prioritize
the retention of a neuropsychiatric expert prior to trial. Seumanu makes no
claim here that his trial counsel’s failure to investigate evidence of brain
damage was ineffective assistance of counsel. (Cf. Caro v. Woodford (9th Cir.
2002) 280 F.3d 1247, 1255 [counsel knew of defendant’s “extraordinary

28
history of exposure to pesticides and toxic chemicals, yet he neither
investigated fully this history nor informed the experts who examined Caro of
those facts that were known to him”].) If anything, the trial court pointed
out, the record shows counsel’s careful attention to the mitigating potential of
the “gambling” incident, not blithe disregard of it. “Even accepting the
dubious proposition” that the oversight alleged here “constituted deficient
performance,” the trial court concluded, Seumanu “fails to meet his high
burden of showing prejudice.”
The Exhaustion Petition does, to be sure, attach a declaration from Dr.
Pablo Stewart, who opines “it is highly likely” Seumanu suffered brain
damage from being hit with a baseball bat during a fight in connection with
the “gambling” incident. Apparently, Seumanu attempted to meet the strict
pleading burden here by providing the trial court with this and other
declarations and documentary exhibits to support of his claim of ineffective
assistance of counsel.13 We know this because, in its order of dismissal, the
trial court cited various items of evidentiary material. After reviewing the
Exhaustion Petition and the evidence proffered in support of it, the trial court
was not convinced that Seumanu’s burden had been met.
Based on the limited record supplied to us, we cannot disagree. We too
focus on Seumanu’s pleading burden, but on appeal—including at the COA
stage, as noted above—he also has the burden of providing us with an

13 Exhibit 3 of the Exhaustion Petition is an index by bates-numbered

pages of (1) selected portions of the record of Seumanu’s trial, including
excerpts from 74 clerk’s transcript (CT) volumes, excerpts from 25 reporter’s
transcript (RT) volumes, and 12 corrected CT volumes; (2) all briefs filed in
the California Supreme Court in connection with Seumanu’s direct appeal;
and (3) the entire record of proceedings on the Initial Petition, consisting of
the 10-volume petition itself and all eight exhibits attached to it, plus the
informal response, the informal reply, and the order denying habeas relief.

29
adequate record to permit meaningful review on the highly expedited basis
that governs the resolution of COA requests. (See Friend II, supra,
76 Cal.App.5th at p. 628.) It is quite clear that, in connection with the Initial
Petition and the Exhaustion Petition, Seumanu’s counsel did the work of
culling portions of the record from past proceedings and proffering it in
support of his various requests for habeas relief, together with
supplementary declarations. But we have none of that material. When
Seumanu filed his COA request, he did not even provide us a copy of the
Exhaustion Petition. We highlighted that basic problem by ordering him to
provide us a copy of the Exhaustion Petition and “any accompanying
exhibits” on December 5, 2023. In response, he gave us the Exhaustion
Petition and the three exhibits that were attached to it, but because those
exhibits did not include the actual evidence filed or lodged with the trial
court, they did not supply any meaningful additional information.14
Absent a basis to believe some dereliction by Seumanu’s trial counsel
prejudiced him at the penalty phase, his former postconviction counsel could
not have been ineffective in failing to raise the issue in the Initial Petition.
Seumanu urges us to find that, had the “gambling” incident been portrayed
in the manner he now claims it should have been, he could have argued more
effectively for life based on mitigating evidence of organic brain damage. But
without any factual record to support the premise of the argument (proof that

14 When the Exhaustion Petition and the attached exhibits were

provided to us, we discovered that the exhibits included only a summary
index of various record materials from the extensive history of past
proceedings in this case. (See fn. 13, ante.) Exactly how much of these
voluminous record materials might have been useful to us in evaluating
whether Seumanu met his burden of making a successful COA showing, we
cannot say. It was up to him to make that judgment when he filed his COA
request, not to wait for us to tell him exactly what we would like to see.

30
he did in fact suffer from brain damage, and if so, the nature of it) and
without anything in the record to help us consider how strongly that
argument, if properly supported, might have weighed in the penalty phase
calculus (an issue that would require us to situate the brain damage claim in
the overall mix of aggravation versus mitigation), we have no basis to
conclude that the incompetence of Seumanu’s trial counsel likely deprived
him of a better penalty phase outcome, and that his post-conviction counsel,
in turn, was incompetent for overlooking the issue.
2. Claim Two
Claim two alleges that Seumanu was denied due process by virtue of
trial counsel’s failure to object to the prosecutor’s misconduct in appealing to
the jurors’ passions and prejudices. Based on a declaration of counsel
attached to the Exhaustion Petition, Seumanu alleges that, after trial was
over and judgment was rendered, he discovered information that his
prosecutor had a reputation for “cheating” in trials, and that her supervisors
knew it, yet they acquiesced in her unethical practices.
In analyzing this issue, the trial court again noted that Seumanu had
previously raised unsuccessful claims of prosecutorial misconduct on direct
appeal. Not only did he specifically raise the issue of improper prosecutorial
appeals to passion and prejudice in his direct appeal, the trial court pointed
out, but the Initial Petition made nearly identical claims. In light of these
unsuccessful prior prosecutorial misconduct claims, the trial court found,
claim two “does not allege a new or different instance of prosecutorial
misconduct”; rather it “amounts to an allegation that additional ammunition
was available to support [Seumanu’s] prosecutorial misconduct claims, and
that post-conviction counsel was ineffective for failing to use that
ammunition.” The additional factual allegations Seumanu added in support

31
of the Exhaustion Petition, the trial court concluded, would not have made
any difference to the outcome.
We have been given none of the newly discovered evidence supporting
previously rejected allegations of prosecutorial misconduct. We have only the
bare allegations in the Exhaustion Petition claiming the evidence is new.
Nowhere does Seumanu allege or show that materials relating to the post-
trial investigation on which he relies were unavailable at the time he filed
the Initial Petition. And to the extent he alleges that his former
postconviction counsel should have discovered those materials earlier than he
did, we agree with the trial court that Seumanu failed to bear his burden of
pleading ineffective assistance of counsel with particularity.
3. Claim Three
In this claim, Seumanu alleges error in a penalty phase jury
instruction that did not allow the jury to consider the impact of his execution
on his extended family. Seumanu argues that because victim impact
evidence is admissible, it is only fair that a jury be allowed to hear how a
defendant’s family would be affected by his execution. “While this argument
is not without a certain logical appeal,” the trial court explained, “it is not the
law. As recently as August 2021, the California Supreme Court reaffirmed
its longstanding rule that ‘a jury cannot consider sympathy for a defendant’s
family in mitigation.’ ” (See People v. McDaniel (2021) 12 Cal.5th 97, 156;
People v. Ochoa (1998) 19 Cal.4th 353, 456.)
The trial court concluded that Seumanu could not have been
prejudiced by legally correct jury instructions or by his trial counsel’s failure
to argue for a change in settled law,” and it further concluded his counsel
could not have been ineffective for failing to argue for a “wholesale change in
the law.” We agree with that assessment of this purely legal issue. Because
it could not have been ineffective assistance for Seumanu’s former post-

32
conviction counsel not to raise a baseless ineffective assistance claim against
trial counsel, Seumanu has not met the strict pleading standard that applies
here. The trial court correctly ruled that the ineffective assistance issue
raised in the Exhaustion Petition is not “ ‘ “one which would have entitled
[Seumanu] to relief had it been raised and adequately presented in the initial
petition.” ’ ” (Friend II, supra, 76 Cal.App.5th at p. 639.)
4. Claim Four
In claim four, the first of six claims related to jury selection, Seumanu
alleges the excusal of seven prospective jurors for cause was reversible error.
This claim focuses on a group of jurors—Green 11, Blue 72, Blue 56, Red 44,
Yellow 9, Black 51, and White 77—all of whom were excused during what is
known in capital cases as the “death qualification” phase of jury selection.
Death qualification is a process designed to confirm that, should the case
proceed to a penalty trial, prospective jurors are open to considering the
imposition of the death penalty.
Relying on various reporter’s transcript excerpts from the voir dire and
excerpts from juror questionnaires, Seumanu argues that these jurors should
not have been excused, that his trial counsel was constitutionally ineffective
for failing to object to their excusals, and that his former post-conviction
counsel was constitutionally ineffective for failing to pursue the
ineffectiveness of his trial counsel on this ground in the Initial Petition.
After reviewing the applicable standard as set forth in Witherspoon v.
Illinois (1968) 391 U.S. 510 (Witherspoon) and Wainwright v. Witt (1985)
469 U.S. 412 (Witt), and applying that standard to each of these prospective
jurors, the trial court stated it could not “conclude that the failure to
challenge their excusal constituted ineffective assistance of counsel.”
Because the law accords great deference to the assessment of the attitudes of
prospective jurors by the judge presiding over the voir dire, the trial court

33
found it highly unlikely, had trial counsel objected to the excusal of any of the
seven individuals at issue, the challenge would have been successful.
The record supports that determination with respect to Green 11, Blue
56, Red 44, Yellow 9, Black 51, and White 77, but it does not with respect to
Blue 72. The improper exclusion of even a single juror is sufficient to require
resentencing in a capital case, even when the prosecution has peremptory
challenges left when the juror is excused. (People v. Heard (2003) 31 Cal.4th
946, 966; see Gray v. Mississippi (1987) 481 U.S. 648, 666–668; id. at
pp. 669–672 (conc. opn. of Powell, J.).) On this record, we believe reasonable
jurists would have grounds to disagree about whether Blue 72 was
improperly excused for cause, which would require a penalty retrial under
People v. Heard and Gray v. Mississippi.
Blue 72 expressed uncertainty about how she would vote if the death
penalty came up on the ballot, but expressed no religious, moral or
philosophical compunctions against capital punishment. She said she was
“neutral” on the death penalty, and then when pressed in voir dire, she said
she did not want to be put in the position of having to decide on life versus
death. The trial court’s explanation for excusing her was “her own state of
unwillingness and apparent lack of desire to be here.”
Prospective jurors need not be enthusiastic about serving on a capital
jury in order to be qualified for that grave task under the Witherspoon-Witt
standard. The record here does not show any evidence of bias against the
death penalty (People v. Cain (1995) 10 Cal.4th 1, 60; People v. Garceau
(1993) 6 Cal.4th 140, 175) or inability to vote for capital punishment if the
evidence warranted it (People v. Wash (1993) 6 Cal.4th 215, 255). Unless
Blue 72 said something suggesting her “unwillingness” was an attitudinal
propensity to disregard the evidence or the court’s instructions, a mere “lack

34
of desire to be here” and face the difficulty of a making a penalty phase
judgment was not enough to justify excusal.
Death qualification probes for neutrality. It is not a search for jurors
who favor capital punishment. (People v. Suarez (2020) 10 Cal.5th 116, 139
[“ ‘Through the death qualification process, individuals may be excused not
only for their unyielding opposition to capital punishment but also for their
intractable support of it. [Citations.] . . . Disqualified jurors are properly
excused for cause, not on the basis of their personal, moral beliefs regarding
the death penalty, but because of their inability to “temporarily set aside
their own beliefs in deference to the rule of law.” ’ ”].)
We are not called upon to decide the merits of this claim now, and we
emphasize that we do not do so. It seems possible that a full assessment of
the record of the voir dire proceedings could reveal something in the stated
views of Blue 72 that would “ ‘prevent or substantially impair the
performance of [her] duties as a juror in accordance with [the court’s]
instructions and [the juror’s] oath.’ ” (People v. Peterson (2020) 10 Cal.5th
409, 429.) But on a prima facie basis, we conclude Seumanu has made a
showing of deficient performance and prejudice by his trial counsel and hence
by his former post-conviction counsel in failing to argue the improper
exclusion of Blue 72 under Witherspoon-Witt. As to this particular
prospective juror, therefore, Seumanu has made a substantial showing of
non-successiveness based on ineffective assistance of counsel.
5. Claim Five
Claim five alleges that by allowing the prosecution and the defense to
confer and stipulate to the removal of potential jurors off the record and prior
to voir dire, the trial court deprived Seumanu of a fair trial. Seumanu
complains that this procedure “upend[ed] the entire system designed by the
Legislature [under Code of Civil Procedure sections 222 and 223] for ensuring

35
that jurors are randomly selected.” This claim, the trial court said, presents
“a novel question of law that does not appear to have been addressed by any
court.” But the trial court concluded “it is not necessary . . . to reach the
merits of this question . . . because [Seumanu] fails to justify his failure to
bring th[e] claim earlier. It was not ineffective assistance for post-conviction
counsel to neglect to present a novel and untested legal claim, and [Seumanu]
cannot establish prejudice from the failure to do so.”
We agree with the trial court that the alleged practice of stipulating to
excusals for cause in contravention of established statutory procedures for
jury selection raises a novel issue of law. We agree, further, that trial counsel
cannot be charged with deficient performance for engaging in a practice
Seumanu has not claimed, and cannot claim, was so obviously at variance
with established law that all reasonably competent counsel would have
known to avoid it. Absent a viable claim of ineffective assistance against trial
counsel, Seumanu has not met his burden of pleading that post-conviction
counsel was ineffective for omitting claim five from the Initial Petition.
Even more fundamentally, we do not see any basis on the thin record
we have been provided for concluding there is a reasonable likelihood the
judge in Seumanu’s capital trial would not have granted a motion to excuse
for cause the jurors who were allegedly excused improperly by stipulation—
i.e., that the outcome would have been different with respect to at least one of
the jurors, thus establishing prejudice. In the absence of a record to evaluate
this issue, what would have happened had such an objection been raised at
trial is pure speculation. And without some factual basis to guide our
analysis, Seumanu cannot meet his burden of showing reversible error on
appeal, which makes further proceedings pointless.

36
 6. Claim Six
In this claim, Seumanu alleges it was ineffective assistance for his trial
counsel to stipulate to the removal of a prospective juror, Green 33, who had
stated on a juror questionnaire that he could set aside his strongly held views
against the death penalty and apply the law as instructed.
Pointing out that the juror in question was excused by stipulation, not
for cause, the trial court took the view that this claim asked the court to
second-guess trial counsel’s tactical decision to enter into the stipulation. We
agree with this assessment, especially since—according to the court’s order of
dismissal—trial counsel declared he was willing to stipulate to these excusals
only where there was a reasonable basis to conclude a juror would be
disqualified for cause.
According to the Exhaustion Petition, prospective juror Green 33’s
questionnaire indicated he was strongly opposed to the death penalty based
on an “evolving belief” (he had been for the death penalty as a child) that
killing is not a proper way to indicate disapproval of murder. But he also
wrote that “although I do not endorse the death penalty, that is only my
opinion and not the law. I know that I can apply the law as instructed,
regardless of personal opinions.” He was nevertheless dismissed via a group
stipulation applicable to a number of prospective jurors.
Because trial judges are empowered to assess the stated views of
prospective jurors like Green 33 and determine whether the person in
question holds views that would “ ‘prevent or substantially impair the
performance of [her] duties as a juror in accordance with [the court’s]
instructions and [the juror’s] oath’ ” (People v. Peterson, supra, 10 Cal.5th at
p. 429), Green 33’s equivocal questionnaire answer did, in fact, supply a basis
for a reasonable judgment by counsel that he would likely be excused for
cause. Thus, based on what the Exhaustion Petition alleges, we reject the

37
argument that trial counsel made a blind stipulation, heedless of whether
Green 33 was vulnerable to a motion to excuse for cause.
On the record presented to the trial judge during voir dire, trial counsel
may have had an argument that Green 33 was clear he could follow the law,
even a strong argument, but there were some indications in the record
pointing the other way. Accordingly, we see no basis for a claim of
constitutionally deficient performance here. Nor do we see any basis for
concluding there was prejudice, since we cannot rule out the possibility this
juror would have been peremptorily challenged had the proper procedure
been followed. Since there was no viable claim that trial counsel was
ineffective, here again there was no basis to claim post-conviction counsel
was ineffective.
7. Claim Seven
Claim seven challenges the constitutionality of excluding jurors for
cause due to their inability to set aside their views about the death penalty.
For prospective jurors with qualms about the death penalty, the ability of
those jurors to set aside their personal views is the key issue during the
death qualification phase of voir dire, as indicated above. According to
Seumanu, by sweeping from capital juries those who have “scruples” about
the death penalty, death qualification stacks capital juries at the guilt phase
with jurors who are more likely to convict than a jury that is fairly
representative of the community, serves as a proxy for racial and gender
discrimination, and results in “conviction-prone” juries.
This is not a new argument in capital litigation. Were we writing on a
clean slate, we would be inclined to give it close scrutiny. But over the course
of decades, the applicable law has become well-established, and we do not see
that changing any time soon. As Seumanu concedes, and as the trial court
correctly observed, both the United States Supreme Court and the California

38
Supreme Court have consistently upheld the constitutionality of the death
qualification process against constitutional attack under federal and state
constitutional standards. (E.g., People v. Poore (2022) 13 Cal.5th 266, 298–
300; see Hovey v. Superior Court (1980) 28 Cal.3d 1, 19–69; Lockhart v.
McCree (1986) 476 U.S. 162, 177–178.)
Under the stringent pleading standard Seumanu faces here, claim
seven fails to state a claim of ineffective assistance of counsel. He cannot
justify the belated presentation of an argument that, had he raised it, would
have run contrary to long established precedent. Because there was no
substantial likelihood such an argument would have succeeded if raised in
the Initial Petition, his ineffective assistance claim against his former post-
conviction counsel for omitting this claim in the Initial Petition fails for lack
of any showing of deficient performance or prejudice.
8. Claim Eight
This claim, a variation on claim seven, “alleges that the process of
death qualifying juries violates the statutory and constitutional rights of
prospective jurors in California.”
As the trial court recognized, claim eight adds a novel dimension to
claim seven by focusing on the rights of scrupled jurors to serve on capital
juries. Seumanu cites no precedent supporting the theory, and provides no
proof that reasonably competent counsel would have objected to the death
qualification process in his case on this ground, at trial or in the Initial
Petition. Nor has he made a showing of any substantial likelihood the legal
argument supporting the claim would have met with any success at either of
those prior points in time, or now for that matter.
Accordingly, we conclude that Seumanu’s attempt to argue ineffective
assistance of counsel as a basis for deeming claim eight non-successive fails
on the same grounds claim seven fails.

39
 9. Claim Nine
Seumanu’s ninth claim, another variation on claim seven, mounts a
frontal legal attack on the standard the United States Supreme Court
adopted 40 years ago for evaluating excusals for cause in death qualification.
The novelty of this argument is that it relies on what has come to be
called an “originalist” approach to constitutional argument. Specifically,
Seumanu argues, the “substantial impairment” standard for excluding
potential jurors in capital cases, developed by the United States Supreme
Court under a Sixth Amendment framework enunciated in Adams v. Texas
(1980) 448 U.S. 38 is inconsistent with current Sixth Amendment standards
established in a series of later cases including Jones v. United States (1999)
526 U.S. 227, Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona
(2002) 536 U.S. 584, Crawford v. Washington (2004) 541 U.S. 36, and Blakely
v. Washington (2004) 542 U.S. 296, as well as with common law principles of
jury selection as they were understood at the time of the founding.
The trial court was unpersuaded and so are we. In light of well-known
recent trends in the high court’s constitutional law jurisprudence, it may be
an interesting question whether Seumanu might someday gain traction with
an argument that Lockhart v. McCree should be revisited on “originalist”
grounds. But from our perspective as an intermediate state court of review,
it is sufficient to note that our Supreme Court has specifically rejected the
theory. (See People v. Poore, supra, 13 Cal.5th at p. 299.) And in any event,
however creative Seumanu’s “originalist” argument is today, his counsel can
hardly be faulted for failing to advance it at trial or in 2012 when he filed the
Initial Petition. Thus, we conclude the ineffective assistance of counsel
argument in claim nine fails for the same reasons claims seven and eight fail.

40
 D. Constitutionality of Section 1509(d) As Applied
There is one final issue to consider, a constitutional question that is
best framed by returning briefly to our background discussion of Friend I and
the traditional two-step framework for analyzing successiveness issues that it
adopted. Recall that, even in the case of successive habeas claims under
section 1509(d) there are two narrow circumstances—actual innocence and
categorical ineligibility for the death penalty—in which such claims will be
entertained on the merits.
Seumanu concedes that this is not a case of actual innocence or
ineligibility for the death penalty and thus does not attempt to argue that he
clears the second hurdle in section 1509(d), but he does contend that, to the
extent this statute narrows the second step of Clark’s miscarriage of justice
exception, it is unconstitutional. The trial court addressed Seumanu’s
constitutional attack on section 1509(d) on this basis, and rejected the
argument. In his proposed appeal, Seumanu seeks review of that ruling.
Even if the Exhaustion Petition was properly deemed successive, Seumanu
argues, he contends he is entitled to a COA on the constitutionality of
section 1509(d).
1. Appealability
The as-applied constitutional challenge Seumanu asks us to address
cannot be fairly characterized as the “successiveness question itself” (Friend
I, supra, 11 Cal.5th at p. 746), which is the discrete issue the Friend I court
held was appealable under section 1509.1(c) where capital habeas claims are
dismissed for successiveness. The question presented here raises a related
but slightly different issue. This constitutional attack on section 1509(d)
rests on the premise that Seumanu’s unexhausted claims are successive, but
nonetheless, he argues, under the backstop exception laid out in Clark—
applied as originally enunciated in 1993, before the exception was

41
narrowed—these claims should be considered on the merits. Because section
1509(d) strips him of that right to review, it is unconstitutional, he contends.
The question we pause to consider here is whether we have appellate
jurisdiction to address this issue at all. (See Keck, supra, 232 Cal.App.4th at
p. 301.) We conclude that we do.
Even though the constitutional issue Seumanu asks us to decide is not
squarely within the appealability holding in Friend I, we think it is
cognizable under the rationale the Supreme Court gave for that holding. As
noted above, the court reasoned that the section 1509.1(c) COA standard
“may be read to permit a certificate ‘to issue when the petitioner has set forth
a substantial argument that section 1509(d) does not apply at all’ ” because
the petition at issue is not successive. (Friend I, supra, 11 Cal.5th at pp. 746–
747.) That is why a superior court’s ruling on successiveness may be
appealed under section 1509.1(c) (subject to its COA screening mechanism),
even though there is a statutory bar against using any “[s]uccessive petition
. . . as a means of reviewing a denial of habeas relief” under section 1509.1,
subdivision (a). A stricter reading, prohibiting all appeals from denials of
capital habeas relief where a petition is found to be successive, would render
dismissals on that basis wholly unreviewable, except where there is a
substantial question of actual innocence or categorical ineligibility for capital
punishment. (§ 1509(d).) The court rejected this interpretation because
“leaving unsuccessful petitioners with no opportunity for appellate review at
all would be contrary to the voters’ evident intent to provide a statutory right
of appeal, albeit a limited one, from denial of petitions deemed
successive . . . .” (Friend I, supra, 11 Cal.5th at p. 747.)
Applying the same logic, we believe the COA standard under
section 1509.1(c) “may be read to permit a [COA] ‘to issue when the petitioner

42
has set forth a substantial argument that section 1509(d) does not apply at
all’ ” (Friend I, supra, 11 Cal.5th at p. 746) because section 1509(d) is
unconstitutional. In view of the harshness of the contrary reading—which
would effectively insulate section 1509(d) from constitutional attack in the
appellate courts—we believe the appealability reasoning in Friend I applies a
fortiori. To avoid casting serious constitutional doubt on section 1509.1(c),
the statute must be read to allow appellate review of constitutional
challenges to section 1509(d). Accordingly, despite section 1509.1,
subdivision (a)’s appealability bar in successive petition cases, we conclude
that the discrete legal issue of section 1509(d)’s constitutionality may be
appealed under section 1509.1(c) along with the successiveness issue itself, in
both instances subject to the section 1509.1(c) COA screening mechanism.
2. Lack of any Basis To Reach the Merits in this Case
Turning to whether Seumanu is entitled to a COA on the issue of
section 1509(d)’s constitutionality, he advances multiple grounds in support
of this argument.
According to Seumanu, section 1509(d) eliminates the following two
circumstances that would have been sufficient to invoke Clark’s backstop
exception: (1) a highly prejudicial error of constitutional magnitude (Clark’s
first miscarriage of justice circumstance), and (2) presentation in a capital
trial of a grossly misleading and highly prejudicial profile of the petitioner
(Clark’s third miscarriage of justice circumstance). Seumanu contends that
the deletion of these two prongs of Clark’s test violates due process, vitiates
the constitutional right to habeas corpus, constitutes an unconstitutional
retroactive change in the law, and violates equal protection.
We believe two of these four arguments have been rejected by the
California Supreme Court (see Briggs, supra, 3 Cal.5th at pp. 841–845 [equal
protection]; Friend I, supra, 11 Cal.5th at pp. 742–745 [retroactivity]), which

43
leaves only the due process and vitiation of the writ issues for consideration.
Seumanu insists that his equal protection arguments are not foreclosed by
Briggs, but assuming he is right about that, we decline to address and resolve
any of his constitutional attacks on section 1509(d) despite having concluded
we have jurisdiction to entertain them in this case.
Seumanu argues that “In [Friend I], the court noted that the new
restrictions on successive petitions in section 1509(d) posed ‘novel and
serious’ constitutional questions. . . . Indeed, the court explicitly left open
whether the statute’s narrowing of the Clark exception was
unconstitutional.” “These ‘novel and serious’ questions are squarely
presented in this case,” according to him. We do not think they are.
The essential wisdom of the Supreme Court’s reading of the term
“successive” in Friend I, as we read the opinion there, is that it removed the
necessity to resort to the Clark backstop exception in all but the rarest of rare
cases. We cannot predict whether, after Friend I, a case might arise where
none of the three non-successiveness criteria enunciated by the Supreme
Court applies (Friend I, supra, 11 Cal.5th at p. 731), but at least one of the
two discarded miscarriage of justice circumstances in Clark is nonetheless
present (Friend I, at p. 728), thus triggering Clark’s backstop exception as it
stood before it was narrowed by Proposition 66, and concretely presenting the
as-applied constitutional arguments Seumanu proposes to make. But if there
remains a real possibility that such a case may arise, we are not convinced
this is it.
As with several of Seumanu’s unexhausted claims when tested for
successiveness, the insurmountable problem for him here is prejudice, a
quintessentially record-specific issue. For each of the two Clark miscarriage
of justice circumstances Seumanu focuses upon (the first and the third), there

44
must be a showing that, absent the alleged constitutional violation, no
reasonable judge or jury would have convicted the petitioner or sentenced
him to death. (Clark, supra, 5 Cal.4th at pp. 797–798.) That prejudice
standard is more demanding than the ineffective assistance of counsel
prejudice standard, and Seumanu gives us no reason to believe he meets it.
Seumanu’s arguments are so broadly framed that they resemble
attacks on the facial constitutionality of section 1509(d). Because he engages
in no meaningful attempt to show how circumstances one or three of the
Clark miscarriage of justice test applies to this case, we are unpersuaded that
Clark’s backstop exception would rescue any of his unexhausted claims from
dismissal even if that case retained its full vitality. Phrased in the
terminology of the section 1509.1(c) standard for issuance of a COA, we
conclude Seumanu fails to make a substantial showing that, as applied to
him, there is any constitutional infirmity in section 1509(d).

VI. CONCLUSION AND DISPOSITION
We grant Seumanu’s request for the appointment of Michael Snedeker
and Lisa Short as his counsel in this appeal effective nunc pro tunc to
September 26, 2023, subject to the caveat that we lack authority at this time
to authorize compensation.
We grant, in part, Seumanu’s request for a COA as to claim four in the
Exhaustion Petition. We will entertain Seumanu’s appeal of the issue of
successiveness on that claim to the extent he argues it was ineffective
assistance for his former postconviction counsel to omit from the Initial
Petition any contention that prospective juror Blue 72 was improperly
excused for cause, and that, as a result, a penalty retrial is required. As to
the other prospective jurors embraced by claim four and as to the remaining

45
eight claims in the Exhaustion Petition, Seumanu’s request for a COA is
denied.
We think the burden a section 1509.1(c) COA requester must meet in
providing a sufficient record is clear (see Friend II, supra, 76 Cal.App.5th at
p. 628), but since we have only today further expounded upon that burden,
we recognize the potential that, in this case, Seumanu may not have
anticipated the need to provide more record materials than he did in making
his COA request. (See conc. opn. of Goldman, J., post.) To the extent
Seumanu believes he should be given an opportunity to supplement the
record before us, we invite him to move for reconsideration of our denial of a
COA on any of his claims, bearing in mind that time is of the essence in doing
so and we may deny the motion simply because it impedes our ability to
decide this appeal expeditiously.

STREETER, J.

WE CONCUR:

BROWN, P. J.
GOLDMAN, J.

46
GOLDMAN, J., Concurring.
We take this opportunity to offer some additional observations,
outside of our main opinion, on the procedures governing requests for a
certificate of appealability and the instructions that are provided to counsel
who prepare them. We start by recalling the point made by our colleagues in
Division Three that the request should “ ‘include copies of reasonably
available documentary evidence supporting the claim, including pertinent
portions of trial transcripts and affidavits or declarations.’ ” (In re Friend
(2022) 76 Cal.App.5th 623, 637 [quoting People v. Duvall (1995) 9 Cal.4th
464, 474].) As the court explained, “Unless the capital record on appeal has
been lodged with the appellate court, the pre-Proposition 66 practice of
simply citing to transcript pages in the record is unhelpful to a meaningful
evaluation of whether the requisite substantial claims have been presented.”
(Ibid.)
As we note in the main opinion, there is no provision for lodging the
capital record in the Court of Appeal; record preparation does not begin
unless and until a court issues a certificate of appealability. (See Cal. Rules
of Court, rules 8.395(c)(2), 8.392(c)(2).) In this respect, California’s procedure
for certificates of appealability differs from its federal analogue, where the
district court clerk is required to transmit the file to the court of appeals upon
the filing of the notice of appeal. (Fed. Rules App. Proc., rule 22(b)(1), 28
U.S.C.) When determining whether a certificate of appealability should
issue, the federal appellate court or judge thus bases the decision on “the
district court pleadings, the record, and the COA application.” (Houser v.
Dretke (5th Cir. 2004) 395 F.3d 560, 562; see, e.g., United States v.
Springfield (10th Cir. 2003) 337 F.3d 1175, 1177–1178; Wilkinson v. Cowan
(7th Cir. 2000) 231 F.3d 347, 350.) By contrast, since we do not have access

1
to any of the pleadings or record materials filed or lodged in the trial court,
we can only consider what the appellant has given us.
This point—made by our Division Three colleagues in Friend and
amplified in our opinion today—is not expressly addressed in California
Rules of Court, rule 8.392(b)(3), which governs requests for a certificate of
appealability. After stating that the request must be attached to the notice of
appeal, it provides only that “[t]he request must identify the petitioner’s
claim or claims for relief and explain how the requirements of Penal Code
section 1509(d) have been met.” There is also a mandatory form, HC-200,
that the Judicial Council prescribes for use in this situation, but it does not
directly advise appellants of the necessity of attaching the record materials
supporting the appellant’s explanation why the statutory requirements for a
certificate of appealability are satisfied.1 While practitioners must
familiarize themselves with the caselaw construing statutes and rules, we
also acknowledge that the certificate of appealability procedure is new to
California law, and the Judicial Council may wish to consider revising the
rule and/or the form in light of appellate courts’ clarification of what is
expected.
Lastly, we note that, because the request for a certificate of
appealability is attached to the notice of appeal, under current practice the
record materials supporting the request would be filed in the trial court, only
for that court to transmit them to the Court of Appeal. To avoid burdening

1 Judicial Council Form HC-001, which may be used to file a petition

for habeas corpus, expressly references the requirement in People v. Duvall,
supra, 9 Cal.4th at page 474, that the claims be supported by declarations,
relevant records, transcripts, or other documents. Friend quoted Duvall
when it held that the same requirement applies to requests for a certificate of
appealability. (In re Friend, supra, 76 Cal.App.5th at p. 637.)

2
trial courts with unnecessary filings, we do not preclude the possibility that
an appellant could instead file supporting materials directly with the Court of
Appeal. Currently, however, the rules do not explicitly provide for that
option, and appellants must take care to ensure that such an approach does
not delay the court’s ability to consider the request.

GOLDMAN. J.

WE CONCUR:

BROWN, P. J.
STREETER, J.

3
Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Thomas Stevens

Counsel: 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.

In re Seumanu – A169146