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C.A. Clarifies Standards for Certificate of Appealability
By a MetNews Staff Writer
Div. Four of the First District Court of Appeal has granted a request for a certificate of appealability to a habeas corpus petitioner as to a claim in his petition asserting ineffective assistance of counsel in failing to object to the dismissal of a juror for cause who expressed concerns about making a death penalty decision.
Justice Jon B. Streeter wrote the opinion which was joined by Presiding Justice Tracie L. Brown and Justice Jeremy M. Goldman. Streeter noted that “[a]lthough this [certificate of appealability] request is simply a motion—something we may resolve summarily, since we are not called upon to make a decision on the merits of an appeal we publish this opinion because of the relative dearth of published case law” in the area.
Goldman wrote a separate concurring opinion to “offer some additional observations, outside of our main opinion, on the procedures governing requests for certificates of appealability and the instructions that are provided to counsel who prepare them.” Streeter and Brown joined in the concurring opinion, described by Streeter as “a rare but not unknown three-judge concurrence.”
1996 Slaying
On May 17, 1996, Ropati Seumanu and three others drove off in a stolen van to look for victims to rob and saw Nolan Pamintuan parking his car. Pamintuan had just come home from his rehearsal dinner before his planned wedding the next day.
Seumanu jumped out of the van with a sawed-off shotgun and confronted Pamintuan. After taking the inscribed watch given to him by his fiancée hours earlier, the four men forced Pamintuan into the van.
He was driven to an ATM to retrieve money before Seumanu shot him.
In 2000, an Alameda County jury convicted Seumanu of first-degree murder, kidnapping to commit robbery, and first-degree robbery, and found true special circumstance allegations that Seumanu committed the murder while engaged in the commission of a robbery and a kidnapping. The jury set the penalty at death, and the California Supreme Court affirmed his convictions and death sentence on automatic appeal.
2012 Petition
In 2012, Seumanu sought collateral review of his conviction and sentence via a habeas corpus petition, filed in the California Supreme Court. It was summarily denied.
He next filed a petition for writ of habeas corpus in the U.S. District Court for the Northern District of California. Proceedings on that petition were stayed to allow Seumanu to exhaust his remedies in state court.
Ten years later, Seumanu filed a petition for habeas corpus relief in the Alameda Superior Court alleging nine claims that were not presented in the 2012 petition. In the new petition, he alleged that failure to raise each of these nine claims by the attorney who filed his initial petition was constitutionally ineffective assistance of counsel.
Amended Habeas Provisions
Proposition 66 was adopted by the voters in the November 2016 general election. It made a number of changes to procedures in capital cases.
The goal of the proposition was to make the system of capital punishment more efficient and responsive to the rights of victims. Most of the changes are now found in Penal Code §1509, which became effective Jan. 1, 2023.
Sec. 1509(d) requires dismissal of any “successive” petition for habeas corpus relief in a capital punishment case unless the court finds that the defendant is actually innocent of the crime of which he was convicted or is ineligible for the sentence under the law, such as where the petitioner was under the age of 18 when the crime took place.
Prior to the section’s enactment, there was no right to appeal a superior court’s denial of habeas corpus relief, and instead a petitioner could only obtain a second look at the refusal to grant such relief by filing a new habeas petition in a higher court. The section changed these procedures by permitting either party to appeal a superior court’s decision on an initial habeas corpus petition to the Court of Appeal.
However, under the section, a successive petition shall not be used as a means of reviewing a denial of habeas relief and §1509(c)(1) provides, in relevant part:
“The petitioner may appeal the decision of the superior court denying relief on a successive petition only if the superior court or the court of appeal grants a certificate of appealability. A certificate of appealability may issue under this subdivision only if the petitioner has shown both a substantial claim for relief, which shall be indicated in the certificate, and a substantial claim that the requirements of subdivision (d) of Section 1509 have been met.”
The section also provides that the appellate court shall grant or deny the request for a certificate of appealability (“COA”) within 10 days of an application for a certificate.
In September 2023, Stevens issued an order of dismissal under Penal Code §1509(d), finding each of the claims in the Exhaustion Petition were successive and rejecting arguments by Seumanu that §1509(d) was unconstitutional. Seumanu appealed and requested that the appellate court issue a COA,
Time Limit
Addressing the issue of whether the 10-day time limit on the grant or denial of COA requests under §1509.1(c) is mandatory or directory, Streeter wrote:
“We received Seumanu’s notice of appeal on November 27, 2023, and since he checked a box in the notice requesting a COA, the 10-day clock began to run that day. Because more than 10 days have elapsed since then, we must decide whether the deadline specified in section 1509.1(c) is jurisdictionally mandatory, and thus whether automatic dismissal of Seumanu’s COA request is required based on the passage of time alone.”
He noted that case law has acknowledged that when a statute regulates the speed at which adjudication takes place, courts are careful to avoid separation-of-powers concerns in determining whether a statutory time limit is mandatory or directory.
“[I]n undertaking this analysis, the pivotal issue is often whether there is a consequence or penalty for missing the deadline. If no consequence or penalty is provided, a statutory time limit will be deemed directory.”
Streeter noted that §1509.1(c) provides no mechanism for enforcement of the 10-day time limit, and found that such time limit is an “aspirational benchmark” rather than a mandatory rule.
Successive Claims
The jurist explained that “our sole focus here is on whether Seumanu has made a substantial showing that his unexhausted claims are not ‘successive’ within the meaning of section 1509(d)” and said that this “does not require a showing that, at this preliminary stage, convinces us the appellant is likely to prevail.”
He noted that a finding of non-successiveness is rare, and wrote:
“A showing of adequate justification for omitting a claim in an ‘initial’ petition will mean that, if brought promptly upon discovery in a subsequent petition, new claims will not be ‘successive’ and thus will not be subject to the section 1509(d) bar.”
He said that petitioners can establish adequate justification for omitting claims from an initial petition in three circumstances: first, if the factual basis for the claim was unknown to the petitioner; second, in cases involving changes in the law that apply retroactively to final judgments where the application of the preexisting law would be prejudicial; third, ineffective assistance of prior counsel.
The analysis does not end there, Streeter said, noting:
“Even for petitions found to be successive, the second step of the analysis provides the ultimate backstop—an exception for miscarriages of justice.”
The jurist said that under §1509(d), miscarriage of justice exception can only be found in circumstances of actual innocence or death ineligibility.
In the case before him, Streeter noted, “Seumanu makes no contention that the factual basis of his nine exhausted claims were unknown to him in 2012 or that some retroactive change in the law justifies his omission of those claims.” Instead, he said, “he argues that his former post-conviction counsel was constitutionally ineffective for failing to raise them.”
Adequate Record
To establish such an ineffective assistance claim, the petitioner must make an initial showing that some act or omission by his counsel fell below the objective standard of reasonableness and must provide an adequate record to support that claim, elaborating:
“While there is no requirement that putative appellants in section 1509.1 appeals provide a full record of all prior proceedings in support of their COA requests, we do need enough of the record to conduct a meaningful assessment of the successiveness ruling the petitioner attacks as erroneous. In order to facilitate expeditious resolution of COA requests in accordance with our statutory obligations, the burden lies with the movant to provide adequate supporting record materials at the time COA requests are filed so that we may determine whether the substantiality standard under section 1509.1(c) has been met.”
Streeter said Seumanu was unable to establish an adequate justification for failing to raise eight of his nine claims in the initial petition and did not make a substantial showing that those claims were not successive within the meaning of §1509(d). He wrote:
“None of these claims pass the debatable-among-jurists-of-reason test for substantiality. Because Seumanu has failed to meet the stringent pleading standard applicable to claims of ineffective assistance of counsel, and in several instances has failed to give us record materials sufficient for us to conduct meaningful review, [there was nothing to debate].”
As to the one remaining claim, Seumanu asserted that his former counsel was constitutionally ineffective for failing to object to the dismissal of certain jurors. As to one of the jurors who was identified as Blue 72, Streeter noted that she had “[e]xpressed uncertainty about how she would vote if the death penalty came up on the ballot” and did not want to be put in the position of having to decide on life versus death.
Streeter said:
“As to this particular prospective juror, therefore, Seumanu has made a substantial showing of non-successiveness based on ineffective assistance of counsel.”
However, he declared:
“We think the burden a section 1509.1(c) COA requester must meet in providing a sufficient record is clear…, but since we have only today further expounded upon that burden, we recognize the potential that, in this case, Seumanu may not have anticipated the need to provide more record materials than he did in making his COA request….To the extent Seumanu believes he should be given an opportunity to supplement the record before us, we invite him to move for reconsideration of our denial of a COA on any of his claims, bearing in mind that time is of the essence in doing so and we may deny the motion simply because it impedes our ability to decide this appeal expeditiously.”
Streeter rejected Seumanu’s challenges to the constitutionality of the section applied to his case, but did find that such challenges are appealable.
Concurring Opinion
In his separate opinion, Goldman wrote:
“[T]here is no provision for lodging the capital record in the Court of Appeal; record preparation does not begin unless and until a court issues a certificate of appealability….In this respect, California’s procedure for certificates of appealability differs from its federal analogue, where the district court clerk is required to transmit the file to the court of appeals upon the filing of the notice of appeal.”
He noted that “since we do not have access to any of the pleadings or record materials filed or lodged in the trial court, we can only consider what the appellant has given us.”
Goldman continued:
“While practitioners must familiarize themselves with the caselaw construing statutes and rules, we also acknowledge that the certificate of appealability procedure is new to California law, and the Judicial Council may wish to consider revising the rule and/or the form in light of appellate courts’ clarification of what is expected.”
The case is In re Seumanu, 2024 S.O.S. 971.
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