What We Do

Capital direct appeals and capital habeas corpus proceedings are distinct proceedings, both of which occur after the imposition of a death sentence in a California superior court. The HCRC represents death-sentenced individuals in state and federal habeas corpus proceedings.

The Direct Appeal Process

Appeals in California death penalty cases proceed automatically to the California Supreme Court. (Cal. Const., art. VI, § 11.) The Supreme Court appoints the Office of the State Public Defender (OSPD) or private counsel to represent a person under sentence of death in the direct appeal, while the Attorney General represents the State of California.

The purpose of the capital direct appeal process is to identify and examine errors of law appearing solely in the trial record and determine whether the conviction(s), special circumstance(s), and/or death sentence should be reversed because of those errors of law. Appellate counsel in a capital case must review thousands of pages of trial records, including all materials filed in the trial court, a transcription of the capital proceedings in the superior court, and any physical evidence introduced at trial. The trial records in capital cases average in excess of 9,000 pages. Based on their review, appellate counsel must research and prepare briefing raising violations of state and federal statutory and constitutional law that occurred during the capital trial proceedings.

State and Federal Habeas Corpus Proceedings

While direct appeal proceedings are limited to legal errors appearing in the trial court record, habeas corpus proceedings in California include constitutional and statutory challenges based on facts outside the trial record. The scope of what may be developed and presented on habeas corpus is determined by a thorough investigation of what might have been presented at trial had constitutional and statutory errors not occurred. Either the California Supreme Court or the superior court appoints the HCRC or private counsel to represent the petitioner in habeas corpus and executive clemency proceedings, while the local district attorney, the Attorney General, or sometimes both agencies as co-counsel, represent the State as the respondent in these actions.

United States Supreme Court and California Supreme Court decisions describe numerous actions or omissions that, given the particular facts of a case, may be cognizable in habeas corpus proceedings. As California Supreme Court decisions have emphasized, it is the duty of state habeas corpus counsel in capital cases to develop thoroughly and present fully all available evidence and associated legal claims in the state habeas corpus petition – claims that, by definition, cannot be identified solely by reviewing the trial record. This undertaking is essential to affording people sentenced to death constitutional protections and ensuring expeditious state and federal habeas corpus proceedings.

In 2016, California voters passed Proposition 66, which "extensively revamp[ed] the procedures governing habeas corpus petitions in capital cases." (Briggs v. Brown (2017) 3 Cal.5th 808, 824.) The proposition became effective October 25, 2017, and shifted much of the responsibility for appointing habeas corpus counsel and adjudicating habeas corpus petitions in the first instance to the superior courts. (Pen. Code, § 1509; Gov. Code, § 68662.)

After a superior court grants or denies a habeas petition, the petitioner or respondent may appeal to the California Court of Appeal. (Pen. Code, § 1509.1.) On appeal, a habeas petitioner may present certain additional claims if their prior habeas corpus counsel was ineffective for failing to raise those claims in the initial state habeas petition. (Pen. Code, § 1509.1, subd. (b).) But in the Court of Appeal, the death-sentenced person is entitled to a new attorney to raise such claims because these claims may present a potential conflict of interest. Moreover, initial habeas corpus counsel cannot "have represented the petitioner in the habeas corpus proceedings that are the subject of the appeal unless the petitioner and counsel expressly request, in writing, continued representation."(Cal. Rules of Court, rule 8.391.) As there is no source of funding for appellate habeas corpus counsel, the Courts of Appeal have generally stayed habeas corpus appeals until a competent authority indicates the funds from which appellate counsel in habeas corpus proceedings can be compensated and the rate at which counsel will be compensated.

Capital habeas counsel continue to be guided by the national standard of practice established by the American Bar Association's (ABA) Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. (See Strickland v. Washington (1984) 466 U.S. 668, 688 [prevailing norms of practice as reflected in the ABA Guidelines are "guides to determining what is reasonable" professional representation].) Habeas counsel have an "obligation to conduct thorough and independent investigation relating to issues of both guilt and penalty." (ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (Feb. 2003 rev.) (ABA Guidelines), §§ 10.7(A), 10.15.1.) Habeas counsel "cannot rely on the previously compiled record but must conduct a thorough, independent investigation." (ABA Guidelines, com. to § 10.15.1.)

Reasonable investigation includes consultation with appropriate experts and other necessary service providers, as well as making efforts to obtain discovery from the State. (See generally ABA Guidelines, § 9.1; see also ABA Criminal Justice Standards: Defense Function (4th ed. 2017) Standard 4-4.1 [discussing defense counsel's duty to determine whether experts are needed and engage them if so]; Rompilla v. Beard (2005) 545 U.S. 374, 387 fn. 6 ["we cannot think of any situation in which defense counsel should not make some effort to learn the information in the possession of the prosecution and law enforcement authorities"].) Counsel's duty to investigate includes the well-established obligation to "investigate and present mitigating evidence." (ABA Guidelines, com. to § 10.7.)

Capital habeas counsel must consider all available legal claims, thoroughly investigate the basis for each potential claim, and evaluate each potential claim in light of the uniqueness of death penalty law, the importance in guarding against later assertions that claims have been waived, defaulted, or not exhausted, and other "professionally appropriate costs and benefits" to asserting a potential claim. (ABA Guidelines, § 10.8(A).) Claims should be presented as forcefully as possible and in a manner specific to the facts particular to the client's case. (ABA Guidelines, § 10.8(B).) After filing claims with a court, counsel has an ongoing obligation to consider asserting newly discovered legal claims and supplementing previously-made claims with additional facts or law. (ABA Guidelines, § 10.8(C).)

Since its inception, the HCRC has developed and refined tools that promote efficient and timely assumption of these duties which include, but are not limited to, the obligations to review clerks' and reporters' transcripts from all phases of the lower court proceedings; review the trial defense attorney's files, which often consist of thousands of pages of materials; review appellate counsel's files; litigate postconviction discovery motions in the trial and appellate courts; investigate potential constitutional and statutory defects in the judgment of conviction and the sentence of death by obtaining records and interviewing witnesses; prepare and file a petition for a writ of habeas corpus and supporting exhibits; prepare and file briefing and pleadings as ordered by the courts; represent the petitioner at an evidentiary hearing, if ordered; represent the petitioner at the hearing to set an execution date pursuant to Penal Code section 1227; and prepare and provide representation on a request for executive clemency from the Governor of California. Effective time management is essential, because at the time of appointment, counsel cannot quantify the scope of work or areas of investigation required to fulfill their duties, as doing so depends on trial-related material unavailable until after appointment.

After a case is resolved or circumstances necessitate a change in counsel, habeas counsel has an obligation to: (1) "maintain[] the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation;" (2) provide "the client's files, as well as information regarding all aspects of the representation to successor counsel;" (3) share "potential further areas of legal and factual research with successor counsel;" and (4) cooperate "with such professionally appropriate legal strategies as may be chosen by successor counsel." (ABA Guidelines, § 10.13.) Where successor counsel has not been appointed, habeas counsel bears this same obligation directly to the client. (See State Bar of Cal. Standing Comm. on Prof'l Responsibility & Conduct (1992) Formal Op. 1992-127 [describing counsel's duty to turn over to the client or to successor counsel case files and information not reduced to writing].) Accordingly, after a case resolves or a change in counsel occurs, there remains a considerable amount of work to be done to organize and prepare the case for successor counsel – or, where no successor counsel is identified, to provide the client with the necessary documents, information, and assistance so they can consider their potential "next steps" – and to close the file. (See Cal. Rules of Prof. Conduct, rule 1.16(e) [client file belongs to client]; Cal. St. Bar. Comm. Prof. Resp., Formal Opn. No. 2001-157 ["client files in criminal matters should not be destroyed without the former client's express consent while the former client is alive"]; see also Los Angeles County Bar Assoc. Legal Ethics Comm. Formal Opn. No. 475; Bar Assoc. of San Francisco Legal Ethics Comm. Formal Opn. No. 1996-1.)