06/28/2021--In In re Friend, the Supreme Court today interprets Proposition 66, the 2016 ballot measure that was designed to expedite executions in California, as allowing death row inmates to file additional habeas corpus petitions in situations where at least some of the initiative’s proponents claim the petitions should be barred. The court also concludes, however, that the initiative’s limitation on habeas relief, while not as broad as those proponents want, does apply to petitioners whose first habeas petitions were filed before Proposition 66 took effect. By its terms, Proposition 66 precludes a successive habeas 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 [of death].” (Emphasis added.) However, the court’s unanimous opinion by Justice Leondra Kruger holds the limitation didn’t overturn one existing habeas standard that allows “the consideration of claims that could not reasonably have been raised earlier, such as those based on newly available evidence or on recent changes in the law.” The court assures that the “could not reasonably have been raised earlier” exception is applicable only in “the rare instance.” But the court also explains that ineffective assistance of counsel as a reason for not raising an issue in a first habeas petition is “good cause for raising the issue in a subsequent petition.” Thus, ineffective assistance of counsel will likely be a predicate for making arguments that otherwise could have been made in earlier habeas petitions. Both the Attorney General and the petitioner agree with the court’s interpretation. Two amici curiae don’t — they claim Proposition 66 eliminated the existing habeas standard. But the amici differ in the consequences of that statutory construction, one of them arguing the initiative’s limitation should be struck as a constitutional violation. The court concludes the broader limitation “raises significant questions” under the California Constitution’s due process and habeas corpus provisions. The opinion doesn’t resolve those questions, although its detailed discussion more than hints that the broad interpretation would not withstand constitutional scrutiny. Instead, the court “presume[s] voters did not intend the interpretation that raises substantial constitutional doubts.” The court says it “see[s] no evidence that Proposition 66 was intended to speed up the process of review to the maximum extent possible, no matter the costs to the principles of substantial justice that lie at the core of the Constitution’s habeas corpus and due process guarantees.” The Court reverses the First District, Division Three, Court of Appeal.
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