Generally, an individual seeking to challenge his or her criminal conviction through a habeas petition must do so in a “timely fashion.”1 Whether a habeas petition has been timely submitted depends in large part on the nature of the criminal conviction, specifically, whether it is a capital case or a non-capital case.
Please note that this chapter discusses the deadline for California state writs of habeas corpus, which are filed in California state courts. This is not the same as a federal writ of habeas corpus, which is filed in federal district court. If you would like more information about the federal writ, refer to the chapter on that topic or consult with an attorney.
1. Deadlines on Death Penalty Cases
Prior to 2016, California law provided that a habeas petition in a capital case (death penalty case) was considered “presumptively timely” if it was filed within 180 days after the due date for filing the reply brief in the direct appeal.2 If the petition was not presumptively timely, the petitioner could still have his or her petition heard on the merits by showing that the petition was filed “without substantial delay” or that there was “good cause” that justified the delay.3
However, in November 2016, California passed Proposition 66, the Death Penalty Reform and Savings Act of 2016.4 Proposition 66 was eventually codified as California Penal Code § 1509, and the statute was mostly upheld by the California Supreme Court in Briggs v. Brown.5 Under and subsection (c) of that code provides that the initial habeas petition in a death penalty case must be filed within one year of the order in which habeas corpus counsel was appointed.6 Thus, California Penal Code § 1509 drastically reduced the time in which counsel has to prepare and file an initial death penalty related habeas corpus petition. Notwithstanding, a petitioner who files an untimely petition in a capital case may overcome the untimeliness if he or she can make a showing of actual innocence by a preponderance of the all available evidence, whether or not admissible at trial.7 Otherwise, untimely petitions in death penalty cases must be dismissed.8
In sum, California Penal Code § 1509(c) requires that death penalty related habeas corpus petitions must be filed within one year of the date that the sentencing court issued its order appointing habeas corpus counsel.9 The only way to get around this deadline is to show actual innocence by a preponderance of all available evidence.10
2. Deadlines on Non-Death Penalty Cases
Unlike capital cases, there is no prescribed, fixed time period in which to seek state habeas corpus relief in a non-capital criminal case.11 Instead, the general rule is that such relief must be sought in a “timely fashion,” “reasonably promptly.”12
To avoid having his or her petition deemed untimely, a petitioner must show: “(1) absence of substantial delay; (2) good cause for the delay; (3) or that the claim falls within an exception to the bar of untimeliness.”13
According to the California Supreme Court Policies Regarding Cases Arising From Judgments Of Death, a habeas corpus petition is presumed to be filed without substantial delay if it is filed within 180 days from the due date of the reply brief on direct appeal, or within 36 months after the appointment of habeas counsel, whichever is later.14 Generally, delay in seeking habeas corpus relief in a non-capital case is measured from the time a petitioner or petitioner’s counsel becomes aware of the grounds for relief, which may be as early as the date of conviction.15 Thus, if it has been more than a few months between that date and when the petition is filed, the petitioner should tell the court why he or she did not file the petition earlier. To show that there was not a substantial delay in filing a habeas petition, the “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.”16
3. Exception #1 – “Good Cause for Delay”
Even if there was a substantial delay in filing a habeas petition, a petitioner can overcome the timeliness bar by showing that there was good cause for the delay.17 “A petitioner may establish good cause by showing particular circumstances to justify substantial delay.”18 In In re Douglas, the California appellate court held that there was a substantial delay where petitioner filed his habeas corpus petition in 2010, approximately 13 years after entering a guilty plea on December 18, 1997.19 Moreover, the court determined there was not good cause for the delay where the petitioner knew or should have known the basis of his claim for relief the day after he entered his guilty plea.20
On the other hand, in In re Sanders, the California Supreme Court determined that a substantial delay existed where petitioner filed his habeas corpus petition over nine years after the reply brief on appeal was filed.21 Notwithstanding, the court held there was good cause for the substantial delay based on counsel abandoning petitioner during the habeas proceedings.22 The court determined that abandonment by counsel constitutes good cause for delay when (1) counsel does “nothing to commence a habeas corpus investigation, or otherwise failed even to acknowledge his or her habeas corpus responsibilities”; or (2) “when counsel ceases representation before he or she should have done so (i.e., before investigation is complete, and/or before counsel has a reasonable basis upon which to conclude that no potentially meritorious habeas corpus issue exists).”23
Additionally, in In re Robbins, the California Supreme Court recognized that “the avoidance of piecemeal presentation of claims” may be a good cause for delay:
In other words, if, for example, a petitioner has investigated and “perfected”-i.e., completed written factual and legal argumentation regarding-three claims (A, B, and C) but he or she is continuing to conduct a bona fide “ongoing investigation” into another potential claim (D), the petitioner’s “delayed” presentation of the former claims in a joint petition containing all four claims may be justified by “good cause”.24
4. Exception #2 – Innocence or “error of constitutional magnitude”
Finally, a petition may be heard on the merits after a substantial delay and without good cause if it falls under one of four narrow exceptions first announced in In re Clark:
(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 he or she was convicted; (3) 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 (4) that the petitioner was convicted or sentenced under an invalid statute.25
A. Error of constitutional magnitude
In In re Robbins, the California Supreme Court determined that when considering this exception, the court would “not decide whether the alleged error actually constitutes a federal constitutional violation.”26 Instead, the court will assume that the petitioner has alleged an error of constitutional magnitude, and from there, determine whether the error led to a trial that was so fundamentally unfair that no reasonable judge or jury would have convicted the petitioner absent the error.27 In other words, the petitioner will be given the benefit of the doubt that a constitutional error occurred and must present evidence that this error caused the trial to be fundamentally unfair and that the outcome of the trial would have been different absent the asserted error.28
B. Actual innocence
The second Clark exception to the timeliness rule allows the court to consider an otherwise untimely claim that “the petitioner is actually innocent of the crime or crimes of which [he] was convicted.”29 The California Supreme Court has set a high bar for such claims.30 The petitioner’s allegations of actual innocence must “cast fundamental doubt on the accuracy and reliability of the trial proceedings,” “undermine the prosecution’s entire case,” or “point unerringly to innocence or reduced culpability.”31 In making a claim of actual innocence, the petitioner must do more than merely evidence that was already disputed at trial.32 Instead, the petitioner must show that the evidence of actual innocence “could not have been, and presently cannot be, refuted.”33
C. Grossly misleading profile
The third Clark exception to the timeliness rules is 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.”34 Under this standard, “[t]he picture of the defendant painted by the evidence at trial must differ so greatly from his or her actual characteristics that the court is satisfied that no reasonable judge or jury would have imposed the death penalty had it been aware of the defendant’s true personality and characteristics.”35
However, as discussed in Section II.A above, under California Penal Code § 1509, initial habeas petitions in death penalty cases must be filed within one year of habeas corpus counsel being appointed, and the only exception to this deadline is a showing of actual innocence by a preponderance of the evidence.36 Thus, it appears that the third Clark exception, which was only relevant to capital cases, has been superseded by the statute and is no longer applicable.37
D. Invalid statute
The final Clark exception allows an untimely habeas petition to be considered if the petitioner was convicted under an invalid statute.38 For instance, in In re Reno, the California Supreme Court held that the petitioner’s challenges to the constitutionality of the California death penalty would not de denied as untimely pursuant to the fourth Clark exception.39
In capital cases, the initial habeas petition must be filed within a year of habeas counsel being appointed.40 The only way around this deadline is through a showing of actual innocence by a preponderance of all available evidence.41
There is no specific deadline for filing initial habeas petitions in non-capital cases, but they should be filed in promptly in a timely fashion, which typically means within a few months of the reply deadline in the direct appeal. Untimely petitions may still be considered on the merits if there was good cause for the untimeliness or one of the Clark exceptions applies.
The material copied above is a chapter from attorney Aaron Spolin’s forthcoming book Strategies for California Habeas Corpus Writs – A Guide for Attorneys.
To learn more about Aaron Spolin, you can read about his awards and background. To speak with him about your own habeas corpus case, you can call him or one of the appeals lawyers at Spolin Law P.C. at (866) 716-2805.
- 1 In Re Sanders, 21 Cal.4th 697, 703 (Cal. 1999).
- 2 Id. at 705.
- 3 Id.
- 4 Briggs v. Brown, 3 Cal.5th 808, 822 (Cal. 2017).
- 5 Id.; Cal. Penal Code § 1509.
- 6 Cal. Penal Code § 1509(c).
- 7 Id. § 1509(d).
- 8 Id.
- 9 Id.
- 10 Id.
- 11 See In re Douglas, 200 Cal.App.4th 236, 242 (Cal. Ct. App. 2011) (“For noncapital cases in California, there is no express time window in which a petitioner must seek habeas corpus relief[.]”); In re Huddleston, 71 Cal.2d 1031, 1034 (Cal. 1969) (“We have established no time limit for the presentation of claims in a petition for habeas corpus.”).
- 12 Sanders, 21 Cal.4th at 703.
- 13 In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998).
- 14 See Johnson v. Chappell, No. C 95-0305 TEH, 2014 WL 1921758 at *2 (N.D. Cal. May 13, 2014).
- 15 See id. (“Substantial delay is measured from the time the petitioner or his … counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.”); Douglas, 200 Cal.App.4th at 243.
- 16 In re Reno, 55 Cal.4th 428, 461 (Cal. 2012).
- 17 Robbins, 18 Cal.4th at 805 (“A claim or subclaim that is substantially delayed will nevertheless be considered on the merits if the petitioner can demonstrate ‘good cause’ for the delay.”).
- 18 See id. (citation omitted).
- 19 Douglas, 200 Cal.App.4th at 243.
- 20 Id. at 246.
- 21 Sanders, 21 Cal.4th at 705.
- 22 Id. at 708-09.
- 23 Id.
- 24 Robbins, 18 Cal.4th at 805-06.
- 25 Reno, 55 Cal.4th at 460; In re Clark, 5 Cal.4th 750, 797-98 (Cal. 1993).
- 26 Robbins, 18 Cal.4th at 811.
- 27 Id. at 811-12.
- 28 See id.
- 29 Clark, 5 Cal.4th at 797-98.
- 30 See Reno, 55 Cal.4th at 474.
- 31 Id. (citation omitted).
- 32 Id. (citing Clark, 5 Cal.4th at 798 n.33 (“Evidence relevant only to an issue already disputed at trial, which does no more than conflict with trial evidence, does not constitute ‘new evidence’ that fundamentally undermines the judgment.”)).
- 33 Id. (citation omitted).
- 34 Clark, 5 Cal.4th at 798; Reno, 55 Cal.4th at 475.
- 35 Id. at 798 n.34.
- 36 Cal. Penal Code § 1509(c)-(d).
- 37 See id.
- 38 Clark, 5 Cal.4th at 798.
- 39 Reno, 55 Cal.4th at 476.
- 40 Cal. Penal Code § 1509(c).
- 41 Id. § 1509(d).
- 42 Sanders, 21 Cal.4th at 703.
- 43 Reno, 55 Cal.4th at 460; Clark, 5 Cal.4th at 797-98.