Tooby's California Post-Conviction Relief for Immigrants

 

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.