California Supreme Court Rules that Voter Initiative Does Not Bar Death-Row Prisoners From Filing Additional Appeals Based on Newly Discovered Facts or New Court Decisions

In a unan­i­mous rul­ing, the California Supreme Court has lim­it­ed the reach of a con­tro­ver­sial vot­er ini­tia­tive that was intend­ed to accel­er­ate judi­cial review of death-penal­ty cas­es. In In re: Friend, decid­ed June 28, 2021, the court ruled that pro­vi­sions of Proposition 66 that strict­ly lim­it a death-row prisoner’s abil­i­ty to file suc­ces­sive chal­lenges to his or her cap­i­tal con­vic­tion or death sen­tence do not bar a cap­i­tal peti­tion­er from fil­ing a sec­ond or sub­se­quent peti­tion that rais­es new claims that could not have been raised in the prisoner’s initial petition. 

Death-penal­ty pro­po­nents, led by the arch con­ser­v­a­tive Criminal Justice Legal Foundation, had argued that the Death Penalty Reform and Savings Act of 2016, Prop 66’s for­mal name, barred death-row pris­on­ers from fil­ing any suc­ces­sive peti­tion unless the pris­on­er estab­lished his or her actu­al inno­cence of the crime or inel­i­gi­bil­i­ty for the death penal­ty. They argued that the term ​“suc­ces­sive peti­tion” should be inter­pret­ed lit­er­al­ly to lim­it death-row pris­on­ers to fil­ing a sin­gle state habeas cor­pus peti­tion, regard­less of new facts or court deci­sions that might affect the out­come of their cases. 

Lawyers for death-row pris­on­er Jack Wayne Friend, the peti­tion­er in the case — joined by the California Attorney General’s office — argued that Proposition 66 did not change the estab­lished legal mean­ing of the term ​“suc­ces­sive peti­tion,” which applied only to cir­cum­stances in which a peti­tion­er attempt­ed to relit­i­gate a claim that had already been raised or untime­ly present a claim that could have been raised in a pri­or habeas peti­tion. Under California law, they argued, a sec­ond or sub­se­quent peti­tion was not suc­ces­sive, and there­fore could prop­er­ly be filed, if the peti­tion­er could not have been aware of the claim at the time the ini­tial peti­tion was filed. Applying a ​“suc­ces­sive peti­tion” bar to such claims, Friend argued, raised sig­nif­i­cant constitutional concerns. 

The Supreme Court of California agreed with Friend and the Attorney General’s office. The restric­tions imposed in Proposition 66 regard­ing suc­ces­sive claims, the court said, ​“do not lim­it con­sid­er­a­tion of claims that could not have been raised ear­li­er, such as those based on new­ly avail­able evi­dence or on recent changes in the law.” Rather, the suc­ces­sor bar applies only to repet­i­tive claims or when ​“the claim was omit­ted from an ear­li­er peti­tion with­out jus­ti­fi­ca­tion, and its pre­sen­ta­tion there­fore con­sti­tutes abuse of the writ process.” A claim that was not pre­sent­ed ear­li­er because of inef­fec­tive rep­re­sen­ta­tion by a cap­i­tal petitioner’s pri­or habeas coun­sel is also not a suc­ces­sive claim, the court said.

Proposition 66 enact­ed a series of changes in the law osten­si­bly intend­ed to make the sys­tem of cap­i­tal pun­ish­ment ​“more effi­cient, less expen­sive, and more respon­sive to the rights of vic­tims.” The changes includ­ed time lim­its on fil­ing and adju­di­cat­ing cap­i­tal appeals, as well as lim­i­ta­tions on the cir­cum­stances in which a death-row pris­on­er could file a habeas cor­pus peti­tion in state court. 

Friend was con­vict­ed and sen­tenced to death in the 1984 rob­bery and mur­der of an Oakland bar­tender. The California courts had affirmed his con­vic­tion and sen­tence on direct review and dis­missed his state habeas cor­pus peti­tion. In 2018, new lawyers rep­re­sent­ing Friend filed a sec­ond state habeas peti­tion to raise six unad­dressed claims. However, Proposition 66 became law before Friend filed his sec­ond state court peti­tion. The Alameda County Superior Court applied the ​“suc­ces­sive peti­tion” pro­vi­sions of the new law to dis­miss Friend’s peti­tion. The California Supreme Court then agreed to review Friend’s case to resolve legal issues relat­ed to the pro­hi­bi­tion on successive petitions. 

The pro-death penal­ty Criminal Justice Legal Foundation filed an ami­cus brief in Friend’s case, argu­ing for strict lim­i­ta­tions on a death-row prisoner’s access to judi­cial review. The Innocence Network also sub­mit­ted an ami­cus brief, argu­ing that the state’s pro­vi­sion of coun­sel to rep­re­sent death-row pris­on­ers in their ini­tial peti­tions did not jus­ti­fy restric­tions on sub­se­quent fil­ings rais­ing claims that coun­sel could not have been aware of or inef­fec­tive­ly failed to present. 

The court’s deci­sion was the sec­ond major lim­i­ta­tion it has imposed on the reach of Proposition 66. In November 2016, California death penal­ty oppo­nents filed a tax­pay­er suit to block the propo­si­tion from going into effect. The law­suit was filed by for­mer El Dorado County super­vi­sor Ron Briggs —who co-authored the mea­sure to rein­state California’s death penal­ty in 1978 — and for­mer California Attorney General John van de Camp. Their law­suit argued that the mea­sures con­tained in the propo­si­tion would ​“impair the courts’ exer­cise of dis­cre­tion, as well as the courts’ abil­i­ty to act in fair­ness to the lit­i­gants before them” and raised con­cerns that in the rush to meet the appel­late time lim­its, death-row pris­on­ers would be assigned lawyers ​“who do not cur­rent­ly meet [California’s coun­sel] qualification standards.” 

In 2017, in Briggs v. Brown, the California Supreme Court upheld the con­sti­tu­tion­al­i­ty of Proposition 66 but severe­ly lim­it­ed its scope. The major­i­ty ruled that the measure’s pri­ma­ry pro­vi­sion — a five-year dead­line on appeals by con­demned pris­on­ers — was ​“direc­tive, rather than manda­to­ry”; that ​“courts must make indi­vid­u­al­ized deci­sions based on the cir­cum­stances of each case”; and that ​“pris­on­ers may seek to chal­lenge [the time lim­i­ta­tions and lim­i­ta­tion on the claims they are per­mit­ted to raise] in the con­text of their individual cases.”