Unlike federal court, there are no statutory time requirements for the filing of a habeas corpus petition in California; the equitable doctrine of laches applies.  Habeas writs have sometimes been issued many years after the conviction was suffered, but courts are increasingly warning that the laches doctrine will bar relief where there has been unreasonable delay by the defense that has prejudiced the prosecution.[196]  Relief should therefore be sought promptly after discovery of the grounds.

 

            A state habeas petitioner who “belatedly presents a collateral attack . . . [must] explain the delay in raising the question.”[197]  In a non-capital case, petitioner must demonstrate either the absence of substantial delay, “good cause” to excuse the delay, or that the claim falls within one of four exceptions.[198] 

 

            Substantial delay on defendant’s part is measured from the time s/he knew or reasonably should have known of the legal grounds on which s/he seeks relief.[199]

 

            “A petitioner must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time.  It is not sufficient simply to allege in general terms that the claim recently was discovered, to assert that second or successive post-conviction counsel could not reasonably have discovered the information earlier, or to produce a declaration from present or former counsel to that general effect.  A petitioner bears the burden of establishing, through his or her specific allegations, which may be supported by any relevant exhibits, the absence of substantial delay.”[200]

 

            Good cause for a substantial delay “may be established if, for example, the petitioner can demonstrate that because he or she was conducting an ongoing investigation into at least one potentially meritorious claim, the petitioner delayed presentation of one or more other known claims in order to avoid the piecemeal presentation of claims, but good cause is not established by prior counsel's asserted uncertainty about his or her duty to conduct a habeas corpus investigation and to file an appropriate habeas corpus petition.”[201]

 

            A claim that is substantially delayed without good cause will still be entertained on the merits if the petitioner demonstrates: “(i) 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; (ii) that the petitioner is actually innocent of the crime or crimes of which he or she was convicted; (iii) that the death penalty was imposed by a sentencing authority that 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; or (iv) that the petitioner was convicted or sentenced under an invalid statute.”[202]

 

A defendant may properly wait until s/he needs the practical benefits of the relief sought before bringing the claim for relief.[203]

 

The courts have held that 18 months is “not a significant delay.”[204]  It is worth noting that prosecution preaccusation delay of 40 months before filing of charges does not violate the law.[205]  Why the defendant should not be allowed similar latitude is not apparent.

[196] In re Clark (1993) 5 Cal.4th 750, 786.

[197] In re Swain (1949) 34 Cal.2d 300, 302.

[198] In re Robbins (1998) 18 Cal.4th 770.

[199] Robbins at 780-81; In re Clark (1993) 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 518 n.5; In re Sanders (1970) 2 Cal.3d 1033, 1040, 88 Cal.Rptr. 633 [first two and a half years excused since defendant had not yet learned of applicable law; next two years excused during which he assiduously sought counsel and an opportunity to review relevant records].

[200] Robbins, supra, at pp. 780-781.

[201] Ibid.

[202] Ibid. (italics omitted); Clark, supra, 5 Cal.4th at 797-798.

[203] In re Bartlet (1971) 15 Cal.App.3d 176, 186, 93 Cal.Rptr. 96, 103 [no reason for incarcerated prisoner to seek correction of sentencing error until he had finished serving the legitimate time].

[204] In re Spears (1977) 157 Cal.App.3d 1203, 204 Cal.Rptr. 333, 336 [granting relief].

[205] People v. Butler (1995) 36 Cal.App.4th 455, 42 Cal.Rptr.2d 279.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " SECOND MOTION BROUGHT ON SAME GROUNDS AS PRIOR MOTION IS BARRED BY RES JUDICATA DENIAL OF THE FIRST
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 824 (4th Dist. Feb. 14, 2013) (where defendant brought motion to withdraw plea, which was denied, and three months later brought second motion to vacate the judgment on the identical ground, it was an abuse of discretion not to deny the second motion on the basis of res judicata: A prior appealable order becomes res judicata in the sense that it becomes binding in the same case if not appealed. (In re Matthew C. (1993) 6 Cal.4th 386, 393, 24 Cal.Rptr.2d 765, 862 P.2d 765.) The defendant's original motion, amended to request leave to withdraw his plea due to ineffective assistance of counsel, was appealable as an order after judgment. ( 1237, subd. (b).)).

CAL POST CON " VEHICLES " HABEAS CORPUS " DUE DILIGENCE REQUIREMENT
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 826 (4th Dist. Feb. 14, 2013) (Third, the defendant failed to exercise diligence in presenting his claims timely. The Padilla decision came down approximately three weeks after the defendant entered his plea, and was issued more than a year prior to the original motion to reduce the sentence which was later amended to seek to withdraw the plea. Defendant did not appeal the denial of the first motion. Instead, he filed a second motion in the superior court several months later. A petitioner bears the burden of establishing, through his or her specific allegations, which may be supported by any relevant exhibits, the absence of substantial delay. (In re Reno (2012) 55 Cal.4th 428, 462, 146 Cal.Rptr.3d 297, 283 P.3d 1181.)).

Other

CAL POST CON " VEHICLES " HABEAS " DUE DILIGENCE
In re Lucero, 200 Cal.App.4th 38, 132 Cal.Rptr.3d 499 (3d Dist. Oct. 24, 2011) (defendant did not unreasonably delay in filing habeas corpus petition, where he filed the petition within 10 months after the judicial decision on which the claim was based became final for all purposes when the time within which a petition for a writ of certiorari in the United States Supreme Court must have been filed).

CAL POST CON " VEHICLES " HABEAS CORPUS -- DUE DILIGENCE AND TIMELINESS OF FILING A HABEAS PETITION IN CALIFORNIA STATE COURT IS MEASURED FROM THE DATE OF FINALITY OF THE DECISION ON WHICH THE CLAIM IS BASED
In re Lucero, 200 Cal.App.4th 38, 132 Cal.Rptr.3d 499 (3d Dist. Oct. 24, 2011)(the defendant did not unreasonably delay in filing habeas corpus petition, where he filed the petition within 10 months after the judicial decision on which the claim was based became final for all purposes when the time within which a petition for a writ of certiorari in the United States Supreme Court must have been filed).

CAL POST CON " HABEAS -- MOOTNESS CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, HEALTH LAW
In re Mille, No. B217102 Defendant's petition for habeas relief, challenging an 84-day delay in transferring him from a county jail to a state hospital after the superior court ordered the sheriff to transport the defendant for evaluation and treatment, is denied as moot as defendant is no longer in custody of the county jail or the sheriff, having been transferred to the hospital, and thus has received the relief requested in the petition. However, instead of denying defendant's initial petition for writ of habeas corpus filed on June 3, 2009, the trial court should have ordered the sheriff to deliver defendant promptly to the state hospital for evaluation and treatment, and this court should have granted the petition which defendant filed 23 days after he filed with the trial court.