RENO ON H.C.

Petitioner's Traverse

Cal.February 28, 2011

sipreuecourrcoy COPY IN THE SUPREME COURT OF THE STATE OF CALIF ORNIA ILECOURT ior) FEB 28 201 RENO, CAPITAL CASE Fre derick K, Ofinens Gen Depuy On Habeas Corpus. Noes124660 eputy ) ) } ) ) ) (Los Angeles County Superior Court : Case Number A445665) ) ) ) ) PETITIONER’S TRAVERSE TO R ESPONDENT’S RETURN TO THE SECONDPETITION FOR WRIT O F HABEAS CORPUS PETER GIANNINI California SBN 61257 1015 Gayley Avenue, #1000 Los Angeles, CA 90024. Telephone: (310) 447-9988 JAMESS. THOMSON California SBN 79658 Attorney & Counselor at Law 819 Delaware Street Berkeley, California 94710 Telephone: (510) 525-9123 Attorneys for Petitioner RENO DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re RENO, On Habeas Corpus. CAPITAL CASE No. $124660 (Los Angeles County Superior Court Case Number A445665) N e e e e e e e e e e e e e e e e e e e e e e ” PETITIONER’S TRAVERSE TO RESPONDENT’S RETURN TO THE SECOND PETITION FOR WRIT OF HABEAS CORPUS PETER GIANNINI California SBN 61257 1015 Gayley Avenue, #1000 Los Angeles, CA 90024. Telephone: (310) 447-9988 JAMES S. THOMSON California SBN 79658 Attorney & Counselor at Law 819 DelawareStreet Berkeley, California 94710 Telephone: (510) 525-9123 Attorneys for Petitioner RENO I. Ii. IV. VI. TABLE OF CONTENTS INTRODUCTION .....-00c cere e rent er reese 1 PROCEDURAL BACKGROUND.... --+ 25-555 rrrrtttntt 8 INCORPORATION .....-:0s creer reece erste rrere esse 12 ORDER TO SHOW CAUSE ...-.- 0 eee errr rte 13 STATEMENT OF FACTS «0.0... 000s cc crerrr 15 ARGUMENT .....0:ee cect erent nner etree reser sess 20 A. PETITIONER HAS ALLEGED PARTICULARIZED FACTS SUFFICIENT TO PROVE TH AT HIS CLAIMS ARE TIMELY OR ARE OT HERWISE COGNIZABLE ...--- 0: ere rere e er rtre seers 31 L. This Court Should Review the T imeliness of Petitioner's SecondPetition and Shoul d Not Conduct a Timeliness Analysis of Pet itioner’ Non-Repetitive Claims Based on an In dividual Claim-By-Claim Basis ....--++ see r tren 35 2. The Timeliness of Petitioner's Petition May Be Determined Based on The Information Alleged in ThePetition, Informal Reply, and Th is Travers@ oo. cee eee eerst e nnn ss 41 3. Petitioner's Repetitive Claims Ar e Timely ......-- 48 4, Petitioner's Non-Repetitive Cla ims Have Been Filed Without Substantial Delay ....-..-+-; 52 a. Petitioner's Burden to Show Abs ence of Substantial Delay. ...--- eee e etr ee 52 b. Petitioner Has Shown An Absence of Substantial Delay In the Filing of His Second Petition ... 6.0.6. see eter erent 55 C. Counsels' Declarations Sho w That the Non-Repetitive Claims In the Seco nd Petition Have Been Timely Present ed ...... 59 Alternatively, Petitioner Has Allege d, with Particularity, Facts Constituting Go od Cause and Justifying the Delayed Filing o f His Petition ......--cee e beeen ee e eee etenenees 64 a. Petitioner Has Carried H is Burden to Show Good Cause And Has Jus tified The Presentation of His Claim s After Substantial Delay .....--e 22sec errr 67 b. The Serial Ineffective A ssistance of Prior Trial, Appellate, and Habeas C ounsel Justifies the Delayed Filing of Pe titioner’s Petition.....0 0 eee cer e retest 70 i. Habeas Counsel’s Duties in a Capital Case wc cece cect e eee eee r ete 72 il. Petitioner’s Trial Couns el Provided Ineffective Assistance of Co unsel ... 77 iii, Petitioner's Appellate Co unsel Provided Ineffective Assista nce of Counsel ..... eee eee e tree 84 iv. Petitioner's Prior Ha beas Counsel Provided Ineffective Assista nce of Counsel... ..-e cee cr eer 90 Vv. Petitioner Has Suffe red From The Serial Ineffective Assista nce of Trial, Appellate, and Prior Hab eas Counsel .....--e cece e tt 99 C. Petitioner Has Shown Other Grounds, in Addition to Ineffective Assi stance of Prior Habeas Counsel, Constit uting Good Cause And Warranting th e Delayed Filing of His Petition ....----+ + sere 103 il The Procedural Dismissal of Petitioner's Claims Will Result in a Miscarriage of Justice in His Case .. 0... 02 eee e ee ere 108 a. Several of Petitioner's Claims Are Premised on Error of Sufficient Constitutional Magnitude to Create a Fundamentally Unfair Trial And Absent Those Erro rs No Reasonable Judge or Jury Would Have Convicted Petitioner ........+.-+ 5: 110 b. Petitioner is Actually Innocent of the Crimes of Which he has Been Convicted .. 112 C. Petitioner's Death Sentence Was Imp osed by a Sentencing Authority That Had Such a Grossly Misleading Profile of the Petitioner Before it That, Absent the Tr ial Error or Omission, No Reasonable Judge or Jury Would Have Imposed a Sentence of Death oo... cc eee eee tenes 120 d. Petitioner's Capital Convictions an d Death Sentence Were imposed Under Several Invalid Statutes ... 0.0 e eee ees 1 28 Petitioner's Petition and All of Petitioner's C laims Are not Barred As Untimely And May Be R eviewed By This Court ..... 0-0-5 eee eee ert ree 130 PETITIONER HAS ALLEGED SPECIFI C AND SUFFICIENT FACTS PROVING THAT H IS REPETITIVE APPELLATE CLAIMS AR E COGNIZABLE .....-.00e eee reeset t rent 131 1, Many Repetitive Appellate Claims Are Premised on New Legal Theories And Are Exempt from the Waltreaus Baro... - eee eee ee 134 This Court should Reconsider the Deni al of Petitioner's Record Based Claims of Er ror and the Procedural Dismissal of Petitio ner's Claims Will Result in a Miscarriage of Just ice ... 137 ui a. The Ineffective Assistance of Petition er's Prior Appellate Counsel Provides Sufficient Justification for Excusal of the Waltreus Bar In Light of the Additional Information Supplied in the Second Petition that Casts New Light on the Claims .....-..--00 seer renee 137 b. Petitioner's Repetitive Appellate Clai ms Are Premised on Fundamental Constitutional Error... 6.6... ee eee e ee 139 Inclusion of Petitioner's Repetitive Appellat e Claims in the Second Petition Is Necessary To Present Petitioner's Claims of Cumulati ve Error and to Exhaust All ofPetitioner's Cl aims For Relief ..... cece ee eee eee tere r este 142 PETITIONER HAS ALLEGED SPECIFI C AND SUFFICIENT FACTS PROVING THAT HIS NON-REPETITIVE APPELLATE CLA IMS ARE COGNIZABLE UNDERINRE DI XON ......-+++ 144 1. Prior Appellate Counsel Performe d Ineffectively ByFailing to Include the Possibly Merito rious - Record Based Claims in Petition er's Second Petition as Claims of Error in His Direct Appeal. ......5- 147 Procedural Dismissal of Petitioner's Claims Under Dixon Will Result in a Miscarriage of J ustice .... 153 Inclusion of Petitioner's Non-Repetitive A ppellate Claimsin the Second Petition Is Necessar y To Present Petitioner's Claims of Cumulat ive Error and to Exhaust All Claims For Relief. ......--5- 155 PETITIONER HAS ALLEGED SPECIFI C AND SUFFICIENT FACTS PROVING THAT HIS REPETITIVE HABEAS CLAIMS ARE COGNIZABLE .... eee rere ee ns ress 157 lL. This Court Should Reconsider Its Prior Denial OfPetitioner's Repetitive Habeas Claims Due to Material Changes in the Law ....---- - sees 161 iv 2. This Court should reconsider Its Prior Denial OfPetitioner's Repetitive Habeas Clai ms Due to The Ineffective Assistance of Pri or Habeas Counsel. .... cece eee err ee r e entrees 162 3, This Court should reconsiderI ts Prior Denial of Petitioner's Repetitive Habeas Claim s Because The Procedural Dismissal of Petitio ner's Claims Will Result in a Miscarriage of Justice . ......--- 164 4. Inclusion ofPetitioner's Repetit ive Habeas Claims sn the Second Petition Is Necessary T o Present Petitioner's Claims of Cumulative Error and to Exhaust All of Petitioner's Claims For Relief .... 165 PETITIONER HAS ALLEGED SPE CIFIC AND SUFFICIENT FACTS THAT JUST IFY THE FILING OF HIS SUCCESSIVE PETITION A ND PROVE THAT HIS NON-REPETITIVE HABEAS CLAIMS ARE COGNIZABLE. ....--00 cece etter 168 1. Petitioner Has Justified the Filing of His Successive Petition. ... 00. e eee eee ee t eterna 170 2. Petitioner’s Prior Habea s Counsel Performed Ineffectively By Failing Lo Inves tigate the Triggering Facts Underlying the Meritorious Non-Repetitive Claims Presented In Petitioner’ S uccessive Habeas Petition. .....0e cece eee ett er eerste 176 3, The Predicate Facts For F ach Claim Were Not Known ByPetitioner At the Time His Prior Habeas Counsel Filed the 1995 Petition. ........ -+er reer 180 4. The Procedural Dismissal of Petitioner’s Non- Repetitive Habeas Claims Will Res ult in a Miscarriage of Justice. ©... -. ee e errr entre 181 5. Inclusion ofPetitioner's Non -Repetitive Habeas Claims in the SecondPetition Is N ecessary To Present Petitioner's Claims of Cumulative Error and to Exhaust All of Petitioner 's Claims For Relief ....ee cece erect t eers 185 PETITIONER’S INSUFFICIENC Y OF THE EVIDENCE CLAIMS ARE COGN IZABLE .....-.+-- 187 Vv VI. G. PETITIONER HAS NOT ABUSED THE WRIT AND HAS ALLEGED SUFFICIENT FACTS INDICATING THAT HIS SEARCH AND SEIZURE CLAIMS BASED ON THE FOURTH AMENDMENT ARE COGNIZABLE 2.00.00cee tees 192 FH. PETITIONER HAS PROVIDED AN ADEQUATE EXPLANATION AS TO HOW ERRORS OCCURRING IN HIS FIRST TRIAL AFFECTED THE FAIRNESS OF HIS SUBSEQUENT RETRIAL AND ARE CRITICAL TO HIS FEDERAL AND STATE HABEAS PROCEEDINGS. ......-0 0c ce eee eee teens 196 CONCLUSION 2.0.0...eeents 201 CERTIFICATE OF COMPLIANCE ......-..5--eee eee 211 V1 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASE LAW Adamsv. Texas (1980) 448 U.S. 38 0... ee ett 200 Ake v. Oklahoma (1985) 470 US. 68 ©... eee e ee ttt passim Arizona vy. Fulminante (1991) 499 U.S. 279 «6 ... veers 139, 183 Argersinger v. Hamlin (1972) 407 U.S. 25... eee eee eee es 135 Ashe v. Swenson (1970) 397 U.S. 436... eee reer 135, 190 Banks v. Dretke (2004) 540 U.S. 668 ©... ee eee renee etter: 161 Benton v. Maryland (1969) 395 U.S. Oh.r 135 Berger y. United States (1935) 295 U.S. 78 oe.eee 136, 161 Blockburger v. United States (1932) 284 U S. 299 . 6. cece eee ees 135 Bracy v. Gramley (1997) 520 U.S. 899 co c ceeete 161 Brown v. Ohio (1977) 432 US. 6b... eee eerste 135 Bullington v. Missouri (1981) 451 U.S. 4 30 2... cere ee ees 135 California v Salgado (1991) 500 U.S. 90 1 oes eee ttre 127 Chandler v. Fretag (1954) 348 U.S. 3 6.. . essererts 135 Coleman v. Thompson (1991) 501 U.S.1 )passim Coy v. Iowa (1988) 487 U.S. 1012... c ece eee eters 110 Crane vy. Kentucky (1986) 476 U.S. 683 oe eee nett 110 Darden v. Wainwright (1986) 477 US. 1 68 oc. cc et ees 136 Douglas v. California (1963) 372 ULS. 35 3 oe eee eee tes passim Drope v. Missouri (1975) 420 U.S. 162.0 ... - eee eee ert 110 Duncan v. Louisiana (1968) 391 U.S. 1L 45 coeees 110 Duran v. Missouri (1979) 439 U.S. 357 oe eects 136 vu Estelle v. McGuire (1991) 502 U.S. 62 6.6... eee e erent 135 Evitts v. Lucey (1985) 469 U.S. 387... - er entre passim Gardner yv. Florida (1977) 430 U.S. 349 2... ce re terete 136 Geders v. United States (1976) 425 US. 80 «2 ... eee errr 135 Gideon v. Wainwright (1963) 372 U.S. 335)... essereeens 135, 165 Giglio v. United States (1972) 405 U.S. 150 «2. eee ee eee 158 Glasser v. United States (1942) 315 U.S. 60 «6. .. eee errr e renee 135 Gregg v. Georgia (1976) 428 U.S. 153 ccc c cc teenies 136 Herrera v. Collins (1993) 506 U.S. 390 2... eee eee rt 112, 199 Herring v. New York (1975) 422 US. 853 ccc ccceee 135 Hewitt v. Helms (1983) 459 U.S. 460 ©... 2. e ee etree renee 136 Hicks v. Oklahoma (1980)447 U.S. B43 eee 110, 136 Holloway v. Arkansas (1978) A35 US. 475 cc c ceeee 135 Kimmelman v. Morrison (1986) 477 U.S. 365 ... sere ern 135 Kyles v. Whitley (1995) S14 US. 419 oo. c eetn passim Lackey v. Texas (1995) 514 US. 1045 oo ccc c c eee eee 93 Lankford v. Idaho (1991) 500 US. 110 cc eeees 136 Lockett v. Ohio (1978) 438 U.S. 586 «6 6ers 136 McCleskey v. Zant (1991) 499 U.S. AGT oc ceens 20, 204 Mooney v. Holohan (1935) 294 US. 103 c cceee 158 Murray v. Carrier (1986) 477 U.S.478 oc cts passim Olmstead v. United States (1928) 277 U.S. 438 ......00er eeeeeeee 158 Pate v. Robinson (1966) 383 U.S. 375 06... e ee rere 110 Penry v. Lynaugh (1989) 492 U.S, 302 . occ c cc cette tees 127 vill Powell v. Alabama (1932) 287 U.S.45) 2... e e res 135 Presnell v. Georgia (1978) 439 U.S. 15 eee ee e trees 135 Richardson v. United States (1984) 468 U.S. 317 «6... e eee eee 135 Ring v. Arizona (2002) 536 U.S. 584e eeens 135 Sawyer v. Whitley (1992) 505 U.S. 333 2. e e eee eens 126 Schlup v. Delo (1995) 513 U.S.91 )112 Skipper v. South Carolina (1986) 476 U.S.4 16s eee eee ees 136 Singer vy. United States (1965) 380 U.S. 24 0. .. ee eee eee eters 136 Sinallis v. Pennsylvania (1986) 478 US. 140 . 2. ceeee 135 Spano v. New York (1959) 360 US. 315 ccc cee tenes 136 Spaziano v. Florida (1984) 468 U.S. 447 2.6.0 136 Strickland v. Washington (1984) 466 US. 688 ... ooo ceeceeeeees passim Strickler v. Greene (1999) 527 USS.0 )158 United States v. Dixon (1993) 509 U.S. 688 ©... 220 er eeerreree 135 United States v. Morrison (1976) 429 US. 1 cece cee ete 135 United States v. Bagley (1985) 473 U.S. 6 67 veces passim United States v. Chemical Foundation, Inc . (1926) 272 U.S. 1 ...-.-- 158 Vitek v. Jones (1980) 445 U.S. 480 06. eee eet renner 136 Walker v. Martin (2011) 562 U.S. we ee ens 24, 25 Witherspoonv. Illinois (1968) 391 U.S. S 10... 0 eee tees 200 Wolffv. McDonnell (1974) 418 US. 539. .. eee eet ttt 136 Woodson v. North Carolina (1976) 428 U. S. 280 2... eee ee 110 Yist v. Nunnemaker (1991) S01 U.S. 797 weerrts 49, 157 ix CALIFORNIA CASE LAW Davies v. Krasna (1975) 14 Cal.3d 502.2... eee eee ees 198, 199 Ex Parte Bell (1942)19 Cal.2d 488 ©... 2. ee cee eee ee e passim Ex Parte Connor (1940) 16 Cal.2d 701 2.0... cece eee eee e te 41, 43 Ex Parte Ford (1911) 160 Cal. 334 1... cece eee een s 23 Ex Parte Lindley (1947) 29 Cal.2d 709 «0... cece eee er es passim Ex Parte Seeley (1946) 29 Cal.2d 294 . 0... cere eee te ers 145 Garcia v. Superior Court (1984) 163 Cal.App.3d 148 ...... .---- passim Hale v. Morgan (1978) 22 Cal.3d 388 2.0... eee eee eet eres 151 Inre Anderson (1968) 69 Cal.2d 613 2... cece eee e ens 72 In re Azzarella (1989) 207 Cal.App.3d 1240 ..... 0.2 e ee renee 31, 44 In re Begerow (1901) 133 Cal. 349 2... eee ee te en es 201 Inre Berry (1968) 68 Cal.2d 137... 6000s ee eee ere nt 128 In re Bevill (1968) 68 Cal.2d 854 ©... 0. eee ee eee ee e eens 25 Inre Bine (1957) 47 Cal.2d 814 0... eee eec ts 145 In re Cameron (1968) 68 Cal.2d 487 © 6... cece eee t tt eres 150 Inre Clark (1993) 5 Cal.4th 770 1... eee ee passim In re Crumpton (1973) 9 Cal.3d 463.6... eee rere ette r eres 25 In re Dixon (1953) 41 Cal.2d 756 ......-.cet ee e nes passim Inre Gallego (1998) 18 Cal.4th 825 2.60. eee eee e et passim In re Hall (1981) 30 Cal.3d 408.0... 6.6 e eee ee tee rs passim In re Hamilton (1999) 20 Cal.4th 273 0... cee eee ee e eens 31 Inre Harris (1961) 56 Cal.2d 879 0... 60sec eee et ree 193 Inre Harris (1993) 5 Cal.4th 813 02... eee eer tenes passim Xx Inve Hochberg (1970) 2 Cal.3d 870 21.6... sees rene e eens 30, 44 Inre Horowitz (1949) 33 Cal.2d 534.6... ee eee eee ett passim In re Jackson (1964) 61 Cal.2d 500.0... 00 eeee e 134, 161 Inre King (1970) 3 Cal.3d 226 1.0.0... eee erent ness 134; 161 In re Lawley (2008) 42 Cal.4th 1231 0.10... seer seer e tere n ees 114 Inre Lynch (1972) 8 Cal.3d 410 0.0.0 e eee ee ee e 156, 157 Inre Miller (1941) 17 Cal.2d 734 2... cee eee eee e ens passim Inre Morgan (2010) 50 Cal.4th 932 1... 0. cec e tees passim In re Newbern (1960) 53 Cal.2d 786... 0... eee reer ttre 145 In re Osslo (1958) 51 Cal.2d 371 2.6... eee er ent eres 145 Inre Robbins (1998) 18 Cal.4th 770 6.6... eee e e rences passim In re Sakarias (2005) 35 Cal.4th 140... 6.0... 0 seer eters passim Inre Sanders (1999) 21 Cal.4th 697 2.6... cree eee errs passim Inre Saunders (1970) 2 Cal.3d 1033.0... 0+ see s e cree eter treet 69 Inre Serrano (1995) 10 Cal.4th 447 2... eee eee 30, 44 Inre Shipp (1965) 62 Cal.2d 547.0...0- 0passim In re Smith (1970) 3 Cal.3d 192.00... eee eee ee e tent e tenses 85 In re Spencer (1965) 63 Cal.2d 400...e ee195 In re Stankewitz (1985) 40 Cal.3d 391.06... cree ee terete 36, 37 Inre Sterling (1965) 63 Cal.2d 486 «00... e eee rete tess passim In re Swain (1949) 34 Cal.2d 300 1... 0... eee eee e ere passim Inve Terry (1971) 4 Cal.3d 911 6...ee tpassim Inre Walker (1974) 10 Cal.3d 764 «1.6... s er ect eee reser eres 25 In re Waltreus (1965) 62 Cal.2d 218 0.00. re ece erties passim Xi Inre Weber (1974) 11 Cal.3d 703... 2. ccc eeeeee 113 Inre Winchester (1960) 53 Cal.2d 528 1.2.0... eee ee ree eee passim Inre Zerbe (1964) 60 Cal.2d 666 ©1120... eee eee eee eee 128, 184 Moorev. Trott (1912) 162 Cal. 268 «6.6... . eee ee ees 199 People v. Abbaszadeh (2003) 106 Cal.App.4th 642 ........--00 2085 150 People v. Abbott 47 (1956) Cal.2d 362 «0... 60s e eee reer errs 150 People v. Allen (1974) 41 Cal.App.3d 196 10.0.0 secre reer 150 People v. Alvarado (2006) 141 Cal.App.4th 1577 ......-. 02 ee eee 150 People v. Asbury (1985) 173 Cal.App.3d 362 Loic ees 135 People v. Avila (2006) 38 Cal. 4th 491 oe. eee eee tees 151 People v. Blanco (1992) 10 Cal.App.4th L167 voce cee eee 150 People v. Bob (1946) 29 Cal.2d 321 2.0... eee eee eee eee eens 150 People v. Bolinski (1968) 260 Cal.App.2d 705 «0.2... - ee eee eee eee 150 ‘People v. Bolton (1979) 23 Cal.3d 01 136 People v. Boyd (1979) 95 Cal.App.3d 577.0... eee eect cn ees 135 People v. Brown (1996) 42 Cal.App.4th 461 2.0... ce eee eee eee 151 People v. Bruner (1995) 9 Cal.4th 1178 ©... + eee eee eens 150 People v. Buford (1982) 132 Cal.App.3d 288 «0.0.5.6 sere rere 136 People v. Cabrellis (1967) 251 Cal.App.2d 681 0.0.0.0... e eee eee 150 People y. Cahill (1993) 5 Cal.4th 479 0.0.0.0. e eee eee teres 150 People v. Carrillo (2004) 119 Cal.App.4th 94 2.6... . eee eee ee e 150 People v. Cavanaugh (1955) 44 Cal.2d 252 ......0005-Sleeve ees 135 People v. Chambers (1964) 231 Cal.App.2d 23 1... 02... eee ee e 150 People v. Champion (1995) 9 Cal.4th 879 20...es 150 XH People v. Chavez (1980) 26 Cal.3d 334. 0.0... sees e eee reer eres 151 People v. Cox (1991) 53 Cal.3d 618 «6.60. eee e eter ee ree 136 People v. Crandell (1988) 46 Cal. 3d 833 «0.6... eee eee eee 135 People v, Crittenden (1994) 9 Cal.4th 83 20... eee ener eee 151 People v. Deere (1991) 53 Cal.3d 704 «0.0... 0 eee eee ees 197 People v. Durbin (1966) 64 Cal.2d 474 0.2.2... cee e eee reer eee 197 People v. Duvall (1995) 9 Cal.4th at 477 2.60. c eevee eee eeees 43 People v. Flores (1968) 68 Cal.2d 5603... 1.2. e eee e eters 151 People v. Frank (1985) 38 Cal. 3d 711 6... ee eee ee eee 150 Peoplev. Frierson (1979) 25 Cal.3d 142 0... erect ees 119 People v. Fudge (1994) 7 Cal.4th 1075 «0... eee cece seers 150 People v. Garcia (1991) 227 Cal.App.3d 1369 .......--- eee eee 135 People v. Gonzalez (1990) 51 Cal.3d 1179... eee eee eee ees passim People v. Green (1980) 27 Cal.3d Lovee cece eee eee ee eet es 43 People v. Harris (1984) 63 Cal.3d 63... 6.6 eee ree eee 136 People v. Johnson (1970) 5 Cal.App.3d 851... 6... eee etree 151 People v. Johnson (2006) 139 Cal.App.4th 1135 2.0.0.6... 025 eee 151 People v. Kitchens (1956) 46 Cal.2d 260 «1... 0. eee c reese 151 People v. Lang (1974) 11 Cal.3d 134 0... e eee eee eee tenes 85 People v. Laudermilk (1967) 67 Cal.2d 272 10.0... e eee e errs 110 People v. Ledesma (1987) 43 Cal.3d 171... cee ee ee ees 120, 121 People v. Malone (1988) 47 Cal.3d 1.1... c eee eee eee teens 150 People v. Matson (1974) 13 Cal.3d 350 0.0... eee testes 135 People v. Matteson (1964) 61 Cal.2d 466 «1... 1-20 eet ete 150 xl People v. Mattson (1990) 50 Cal.3d 826 ....- 2.0. e eee eer teense 136 People v. McDonald (1984) 37 Cal.3d 384 . 0... 00+ seer eee res 135 People v. McDowell (1968) 69 Cal.2d 737 0... 0-1 seers eee eres 126 People v. McLain (1988) 46 Cal.3d 97 «00... eee eee eee ete 150 People v. Memro(I) (1985) 38 Cal.3d 658 «0... +2. eee eres passim People v. Memro (I) (1995) 11 Cal.4th 786 2.0... 20 eee eee passim People v. Mendoza Tello (1997) 15 Cal.4th 264 2. cece ee 146, 182 People v. Miranda (1987) 44 Cal.3d 57 2... eevee eee e ern es 150 People v. Norwood (1972)26 Cal.App.3d 148 1.0... eee eee 150 People v. Pinholster (1992) 1 Cal.4th 865... 6... 00ers 150 People v. Pope (1979) 23 Cal.3d 412.0... eee e erence 121, 126 People v. Robertson (1989) 49 Cal.3d 18... 0. cece eee eee tees 136 People y. Robinson (1965) 62 Cal.2dB89eee 15] People v. Rodrigues (1994) 8 Cal. 4th 1060 «0... +. 6 eee eee e ener ee 151 People v. Romero (1994) 8 Cal.4th 728... 0. eee eee tenes 5, 43 People v. Saunders (1993) 5 Cal.4th S80 ccceee 151 People v. Scott (1978) 21 Cal.3d 284 2.2... sees neers 150 Peoplev. Simon (1927) 80 Cal.App. 675.20... eevee errr 150 People v. Smith (1973) 33 Cal.App.3d 51.00... cece eee eee ees 135 People v, Stewart (1985) 171 Cal.App.3d 883 «0.6... eee eee eee 135 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 ........--5- 135 People v. Tassel (1984) 36 Cal.3d 77 0... . sere eee etree 135 People v. Thomas (1978) 20 Cal.3d 457.0... eee erent eens 135 People v. Thompson (1980) 27 Cal.3d 303 0.0... . cee eee ee ee 136 xiv People v. Thompson (1988) 45 Cal.3d 86 wc ccc cec e eens 135 People v. Turner (1990) 50 Cal.3d 668 oo. ccc ce t ees 150 People v. Vera (1997) 15 Cal. 4 9] : 151 People v. Walker (1993) 14 Cal.App.4th 1615 «0.0... -. sere eee ees 135 Williams v. Superior Court (1984) 63 Cal.3d 441... 0. eee ee eee 135 FEDERAL COURT CASES Ainsworth v. Woodford (9th Cir. 2001) 268 F.3d 868 ...... 0.000 ee eee 83 Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 ©. .. 60 eee eres 135 Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383 2.0 ... ee eee eee eee 136 Brown v. Craven (9th Cir. 1970) 424 F.2d 1166... ccc eee eee 135 Brown vy. Vasquez (9th Cir. 1991) 952 F.2d 1164 2 ... -. 0 cee ee eee 135 Calderon v. United States District Court (9th Cir. 1 996) 96 F.3d 1126 .. 49 Caro vy. Calderon (9th Cir. 1999) 165 F.3d 1223 Lice eee ee eee 119, 120 Charles y. United States (9th Cir. 1954) 215 F.2d 825 1.2... .e eee eee 135 Crandell v. Bunnell (9th Cir. 1998) 144 F.3d 1213 .00... eee eee 135 Deutscher vy. Whitley (9th Cir. 1989) 884 F.2d 1152 ... 0+. eee eee ee 125 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 26 ... eee eee eee 136 Fierro v. Gomez (N.D.C.A. 1994) 865 F.Supp. 138 7 oo. ce eee es 93 Forrest v. Vasquez (9th Cir. 1996) 75 F.3d 562 0. 0... ees 49 Hendricks v. Calderon (9th Cir. 1995) 70 F.3d 103 2 ....-..-.++- 83, 126 Hendricks v. Vasquez (9th Cir. 1992) 974 F.2d 109 9 2.0... eee ees 83 Henry v. Estelle (9th Cir. 1993) 399 F.2d 3241 oo .eeeee 135 Hill v. Roe (9th Cir. 2003) 321 F.3d 787... 0... eee eee eee eunes 49 XV Hudson v. Rushen(9th Cir. 1982) 686 F.2d 826 . vo cccee vneveteees 135 Jamal v. VanDeKamp(9th Cir. 1991) 926 F.2d 918 ©... 0. e eee 135 Jennings v. Woodford (9th Cir. 2002) 290 F.3d 1006 ... ...--- 0000s 121 La Crosse v. Kernan(9th Cir. 2001) 244 F.3d 702 «2.1... eee eee 49 Lambert v. Blackwell (E.D.P.A. 1997) 962 F.Supp. 1521.. . . eee eee 199 Morales v. Calderon (9th Cir. 1996) 85 F.3d 1387 «6... e ee eee eee 209 Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084 «0.6... sere rete 110 Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446... 0... eee eee 121 Schell y. Witek (9th Cir. 2000) 218 F.3d 1017 «0... ee ee e eens 135 Silva v. Woodford (9th Cir. 2002) 279 F.3d B25ee eee 127 Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308 ...... ..50 eee eee 39 United States v. Bagley (9th Cir. 1985) 772 F.2d AQ Loc eee 135 United States v. Chenaur (9th Cir. 1977) 552 F.2d 294.. . 0... sees 136 United States v. McLister (9th Cir. 1979) 608 F.2d 785 . ....--+-- passim United States v. Ortega (9th Cir. 1977) 561 F.2d 803 ..... .-+-+5. passim United States v. Postma (2th Cir. 1957) 242 F.2d 488 «2 ... .--. 0-50 135 Williamsonv. United States (9th Cir. 1962) 310 F.2d 19 2 .... eee eee 135 Witt v. United States (9th Cir. 1952) 196 F.2d 285 .. 2.. . eee eee ees 135 STATUTES AND CONSTITUTIONAL PROVISION S 28 U.S.C. § 2254(e)V)oeent rees 190 California Con. Art.J, § 1.0... e nt s23, 166 California Con. Art. 1, § 11... eeeeen s passim California Con. Art. VI§ 14 26...et tes 43 XVI California Evid. Code § 353.0 1. eee eee eeeet e 150 California Gov. Code § 68662 ..... 06... cece tte tents 72 California Penal Code § 288 «11.26... ee eee teete rs passim California Penal Code § 1484 0.0... eeeeee ene 44 California Penal Code § 3604 «1.2.6.0... cece eee tees veces 93 Cal. Rules of Court, rule 8.605(e) 1.0... eee eet e te eee 75 Cal. Rules of Court, rule 8.605(f) 22... eeee e2. 74 International Covenant on Civil and Political Rights, Dec. 19, 1966, Art. 6, 999 UN.TS. 171, 174-75 ooteen tres 93 Supreme Court Policies Regarding Cases Arising From Judgme nts of Death (eff. June 6, 1989, mod. eff. December 21, 1992). .. ..... passim United States Con. Art. I, § 9, cl. 2 ....-....0-5-oct ee eteees passim Universal Declaration on Human Rights, GA Res. 217A (It), U.N . GAOR,3d Sess. Art. 3, U.N. Doc. A/810 (1948) vo. cec e 93 PERSUASIVE AUTHORITIES African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 L.L.M. 58, art. 40... ee 93 Alexandra Natapoff, Beyond Unreliable: How Snitches Contr ibute to Wrongful Convictions (2006) «1.60.0 reece reer e te 115 American Convention on Human Rights, Art. 4, 1144 UN.T. S. 123 .... 93 American Convention on HumanRights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 3) rev. 3...eee eee rene 93 Appendix of Appointed Counsel's Duties, available at: www.courtinfo.ca.gov/courts/supreme/documents/applica9b .pdf Lees 72 Boaz Sangero and Mordechai Halpert, Why a Conviction S hould Not Be Based on a Single Piece ofEvidence: a Proposalfor Reform (2007) ... 184 xvi Bronson, On the Conviction Proneness and Representativeness ofthe Death-Qualified Jury: An Empirical Study ofColorado Veniremen (1970); 42 U. Colo. L. Rev. Lo... eeeeee ete ees 200 Bronson, Does the Exclusion ofScrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidencefrom California (1980) 3 Woodrow Wilson L. J. 11...ceeens200 California Commission on the Fair Administration of Justice, FINAL REPORT, Gerald Uelman,ed., available at: http://www.ccfaj.org/ documents/CCFAJFinalReport.pdf(last visited December 19, 2010). . . 202 California Department of Corrections, Division of Adult Operations, Condemned Inmate Summary List; available at: http://www.cdcr.ca.gov/Capital.Punishment/docs/ CondemnedInmateSummarypdf(last visited February 5, 2011) ...... 202 Commonwealth v. Watlington (1980) 491 Pa. 241.6... eee eee 71, 104 Cowan, Thompson, & Ellsworth, The Effects ofDeath Qualification on Jurors' Predisposition to Convict and on the Quality ofDeliberation, 8 Law & Hum. Behav. 53 (1984) ... 0... eee eeees 200 Cowan & Thompson, The Death-Qualified Jury andthe Defense of Insanity, 8 Law & Hum. Behav. 81 (1984) 2.eee200 Diagnostic andStatistical Manual, Second Edition [DSM IT}, Sexual Deviations 302.0. 0... cceetenet eee 122 Edward Bronson, Does the Exclusion ofScrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidencefrom California, 3 Woodrow Wilson L.J. 11 (1980)... eee ee 200 Edward Bronson, On the Conviction Proneness and Representativeness ofthe Death-Qualified Jury: An Empirical Study ofColorado Veniremen, 42 U. Colo. L. Rev. 1 (1970) ©... 6. eee eee eee 200 Ellsworth, Bukaty, Cowan, & Thompson, The Death-Qualified Jury and the Defense ofInsanity (1984) 8 Law & Hum.Behav. 81 ....... 200 Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984) .... 200 Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use ofPsychological Data to Raise Presumptions in the Law, 5 Harv. Civ. Rights-Civ, Lib. L. Rev. 53 (1970) .. 2.0... eee eee eee 200 XVill H.Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968) .....-...... eee eee ees 200 Hugo Bedau and Michael Radelet, Miscarriages ofJustice in Potentially Capital Cases (1987) 40 Stan. L. Rev. 21 .......-....4-. 119 Judge Arthur L. Alarcon, Remediesfor California's Death Row Deadlock (2007) 80S. Cal. L. Rev. 697, 717 2... eee ee eee 75 Jurow, New Data on the Effect ofa "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971) .......... 200 Louis Harris & Associates, Inc. (Harris-1971) Study No. 2016 ....... 200 Richard Leo, Police Interrogations and American Justice (2008) Harvard University Press... 6...e ee eens 193 Samuel Gross, The Risks ofDeath: Why Erroneous Convictions are Commonin Capital Cases (1996) 44 Buff. L. Rev. 469 ............ 193 Shatz and Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.ULL. Rev. 1283, 1288 ......--.. 0 eee eee 93 Thomas Buergental, International Human Rights in a Nutshell (2d ed. 1995)e ees 93 Thompson, Cowan, Ellsworth, & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum. Behav. 95 (1984) ........ 200 W.Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964) .............5. 200 Walker v. Martin (U.S. 2011) Brief Amicus Curiae of the Habeas Corpus Resource Center in Support of Respondent, 2010 WL 4278489, at LON.6. eeee een tenes 26 X1X I. INTRODUCTION. In this traverse to respondent's return to this Court's order to show cause, petitioner demonstrates why thefiling of his second petition for writ of habeas corpusis not an abuseofthe writ,! and indeed is necessary in orderto raise "all the potentially meritorious claims" undermining his capital convictions and sentence. (/n re Clark (1993) 5 Cal.4th 770, 775). Petitioner's secondpetition wasfiled without substantial delay, or good cause justifies the delayed filing within the timeliness framework established in Clark, supra, 5 Cal.4th 770. (See generally Jn re Sanders (1999) 21 Cal.4th 697, 703). Good cause justifies the filing of petitioner’s fifty-six (56) repetitive claims andeighty-seven (87) non-repetitive claims of error in petitioner's case.” Likewise, good cause justifies the filing of petitioner’s non-repetitive claims of error based on the need to avert a miscarriage ofjustice and to correct fundamental constitutionalerrorsin his capital trial. In sum, the secondpetition should not be dismissed, each of the claims should beresolved on the merits, and petitioner’s | Petitioner admits that he is confined under a sentence of death pursuant to the judgmentof the Superior Court of California in and for the County of Los Angeles, Superior Court Criminal Case No. A445665. The judgment was renderedon July 17, 1987. (Clerk's Transcript of second trial, hereinafter referred to as "CT II,"at 577). Petitioner denies that he is confined under a lawful judgment of sentence. 2 A successivepetition may contain two types of claims: 1) repetitive claims that were "rejected whenhis initial petition was denied"; or 2) non- repetitive claims "that were not asserted in that petition.” (Clark, supra, 5 Cal.4th at 767). unconstitutional convictions and sentence should be reversed. Manyimportantaspects ofpetitioner’s defense and socialhistory were never presented to his capital jury due to the suppression of evide nce by the state, and trial counsel's ineffective assistance. Petitioner was s ubject to two capitaltrials rife with state misconduct, prosecutorial miscondu ct, judicial bias, juror misconduct, and ineffective assistance of co unsel. Within the full picture that should have beentoldat trial, on appeal, an d in the first petition, many alternate suspects were identified but never investigated by law enforcementortrial counsel; false and perjurious "snitch" and eyewitness testimony wasintroduced at petitioner's capita l trial; prosecutorial misconduct ran rampant through all phases ofthe proceedings; andtrial counselfailed to present any of petitioner's then existing and substantial evidencein mitigation. Unfortunately, the cla ims of error resulting from petitioner’s capital trials were not properly documented and filed by prior counsel on appealandin hisfirst hab eas petition. Despite insisting that the timeliness of petitioner’s claims must be analyzed on a claim by claim basis, respondent fails to discuss the allegations contained in a single claim alleged in the secondpetition. Review of the manyerrors infecting petitioner's capital trial prove that the proceedings were fundamentally unfair and violated the California and United States Constitutions. Appellate and prior habeas counsel failed t o presentthe claims previously, and as a result, petitioner's current coun sel had to file the secondpetition, which includes"all potentially meritor ious 2 claims" underminingpetitioner's capital convictions and sentence. (Clark, supra, 5 Cal.4th at 775). (See traverse exhibit M (Declaration of Wesley Van Winkle, at 7)). Petitioner was convicted of the 1976 homicidesof Scott F. and Ralph C. The killings occurred when the boys had been night fishingat Ford Park Lake, in Bell Gardens, California. Petitioner was also convi cted of the 1978 homicide of Carl C., which occurred in South Gate, Cali fornia. Petitioner was arrested on October 27, 1978. He wasinterrogated, made an involuntary and coerced confession to the killings, and was charged with the three homicides. In the return, respondent, does not address the exculpatory and reduced culpability evidence presented by petitioneras to all three of the killings. Regarding the 1976 killings, no physical evidence connects petitioner to the crime scene. The boys were last seen with two men, one of whomrode a motorcycle. No one identified petitioner as the manriding a motorcycle. No oneidentified petitioneras either one of the two men seen with the boys. Over a dozen alternative suspects were identified by authorities and were not investigated by petitioner’s defense counscl. Regarding the 1978 killing, Carl C. was reported missing from his homeafter last being seen with his older brother. The South Gate Police Department missing-juvenile report prepared on October 22, 1978, indicated that Carl C. waslast seen near the rear ofhis residence at 7:00 p.in. on that date. (Secondpetition, exhibit S-H (Missing-juvenile report)). No one ever saw petitioner with Carl C. before the boy was reported 3 missing from his home.’ This exculpatory evidence wasnot provided to petitioner prior to his first trial, and was provided only months before his secondtrial. Importantly, petitioner could not use the exculpatory evidence tolitigate significant issues during hisfirst trial, including his motion under California Penal Code § 1538.5. Had this evidence beentimely provided to petitioner, the death penalty would likely have been precluded as an option during his 3 Significant evidence demonstrating petitioner's reduced culpability for the Carl C. killing wasin trial counsel's possession, but never presented to the jury at petitioner's capital trial. Petitioner's Atascadero State Hospital files reflect that he was administered an clectroencephalogram (EEG)in 1972. That test indicated abnormalresults, particularly over the temporal- occipital areas of the brain. Thefiles also reveal evidence of petitioner's history of multiple head traumas, which were intentionally inflicted by his physically abusive parents and suffered during childhood and adolescent accidents; organic brain damagelocalized in the area of the temporal and occipital lobes; petitioner's history of severe abuse and victimization as a — child, in a dysfunctional family headed by violent, abusive and emotionally unstable parents, that producedlife-long psychic trauma; a documented clinical history dating frompetitioner's early adolescence reflecting professional observation of psychiatric symptoms including auditory hallucinations, delusional thought processes, anxiety, paranoia, severe somatic physical sensations, decompensation, schizophrenia, psychosis and disassociation warranting intervention and treatment; and a history oflife- long conditioning and pronenessto false confessions. Noneofthis evidence was presented to the jury, thoughit reduced petitioner's legal and moral culpability for the charged offenses and provided an independent basis on which an impartial sentencer would have concludedthatlife imprisonment without the possibility of parole was the appropriate sentence. (See secondpetition, at 358 (Claim 108 - Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence.). second trial. Prior appellate counselalso failed to cultivate the evidence and demonstrate petitioner's actual innocence. In the secondpetition, petitioner has, for the first time, set forth his case of innocence andthe facts cast significant doubt on petitioner's culpability for the crimesalleged.’ 4 Trial, appellate, and prior habeas counsel failed to identify, investigate, and develop claims based onpetitioner's actual innocence though ample indicia ofalternate suspects, exculpatory evidence, and petitioner's reduced culpability existed in and outside the record. The discovery, which servesas the basis for petitioner's Brady claims was not given to trial counsel until shortly before petitioner's second capitaltrial in 1985. (second petition, at 104 (Claim 19 - The Prosecution Violated Petitioner's Rights by Failing to Disclose Approximately 400 Pages of Discovery)) Trial counsel thus did not investigate or develop an actual innocence defense. Unfortunately, though the evidence wasin their possession,and included with thefirst petition, prior appellate and habeas counselentirely failed to present any claims premised on petitioner's actual innocence or reduced culpability. (See traverse exhibit L (Declaration of Thomas Nolan, at 2-3)). It was not until petitioner's second petition, in 2004, when his claimsofactual innocence werefirst presented to this Court. (See secondpetition, at 298 (Claim 86 (Trial Counsel Rendered Ineffective Assistance By Failing to Investigate and Present Evidence Regarding Alternate Suspectsl)); and 299 (Claim 87 (Trial Counsel Rendered Ineffective Assistance At the Guilt Phase as a Result of the Failure to Adequately Investigate the Identity of the Actual Killer or Killers in the 1976 Offenses)). Each of these claims are premised on evidence that prior counsel had in their possession but failed to utilize and develop into potentially meritorious claimsof error. (See Claim 86 (citing second petition exhibit S-A); Claim 87 (citing second petition exhibits S-A, G and H). Petitioner’s trial counsel established a primafacie case of petitioner’s innocence, but was unableto further substantiate his actual innocence claims because the funding request included within his secondpetition was never granted. (See second petition, at 520-21). Based on his rights following the issuance of an order to show cause in his case, and to fully present his actual innocenceclaims, petitioner has thus filed a funding request in conjunction with his traverse and will file discovery requests and subpoenasif necessary. (See Peoplev. Romero (1994) 8 Cal.4th 728, 740). c r t Asto both the 1976 and 1978 offenses,trial counsel failed to introduce material evidence regarding petitioner's mental state or present a mental health defense despite counsel's possession of this evidence. Files in trial counsel's possession indicated that petitioner could not form the requisite mentalintent forfirst degree murder and that he should not have been sentenced to death. None of this evidence was presented attrial or given to the experts appointed by the Court to evaluate petitioner. Hadtrial counsel provided adequate information to the experts, and had the experts conducted an investigation meeting the reasonable standardsof care, they would have reached the same conclusions as Dr. George Woods — namely, that petitioner suffered from mental incompetency, Borderline Personality’ Disorder, and Post Traumatic Stress Disorder. (See secondpetition exhibit CC). Trial, appellate, and prior habeas counselall failed to identify, investigate, develop, and present material, exculpatory, and mitigating evidence. Petitioner’s current counselare the first attorneys to present the declarations of over ten witnesses in mitigation.? Had they been called at Based onthis investigation he will supplement his actual innocence and other claims accordingly. 5 Due to prior appellate and habeas counsel's failure to identify triggering facts, conduct reasonable investigation into claimsoferror, and develop a petition consisting ofall potentially meritorious claims,petitioner first presented his claims of reduced culpability in his second petition. (See second petition, at 355 (Claim 107 (Petitioner was Denied his Rightto the Assistance of Counsel as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses)); 358 (Claim 108 (Petitioner's Rights to Due 6 petitioner’s trial, these witnesses would havetestifi ed to facts material to the jury’s guilt and penalty determinations. In sum,p etitioner's death sentence was imposed by a sentencing authority that had such a grossly misleading profile of petitioner that, absent trial error or trial counsel’s ineffectiveness, no reasonable jury would have impo seda sentence of death in this case. In the end, the answerto this Court’s eight queriesi s simple- petitioner has not abused the writ. Respondentfails to demonstrate that petitioner's second petition should be dismissed. Peti tioner’s appellate and prior habeas counsel performed ineffectively by fai ling to identify, investigate, develop or presentall the potentially mer itorious claims affecting petitioner's convictions and capital sentence . (See traverse exhibits L and M (Declaration of Thomas Nolan , at 3-4; and Van Winkle, at 5-7). As aresult, petitioner can show good causefo r the filing of his second petition. Indeed here, forthe first time i n his case, counsel has prepared andfiled on behalf of petitioner a habeas corpus petition that meets this Court’s standards. (See Clark, supra , 5 Cal.4th at 780) ("a Process and Effective Assistance of Counselat Bot h Guilt and Penalty Phases, and to a Reliable Determination of Pen alty, Were Violated as a Result of Failure to Investigate and Present Mitigat ing Penalty Phase Evidence)); and 361 (Claim 109 (Trial Counsel Re ndered Ineffective Assistancefor Failing to Present Mitigating Eviden cein the Sentencing Phase ofTrial)). Each of these claims are premised on evidencethat prior counsel failed to utilize and failed to develop. (Se e Claim 108 (citing second petition exhibits M - X); and Claim 109 (c iting second petition exhibits S - AA). petitioner whois represented by counsel when a petition for writ of habeas corpusis filed has a right to assume that counsel is compet entandis presenting all potentially meritorious claims."). Thus,like in Sanders, the claims not previously raised due to prior counsel's ineffecti veness, are meritorious, warrantrelief, and are included within the secondp etition. (See Sanders, supra, 21 Cal.4th at 713). Asset forth bel ow, this Court should review all one-hundred-forty-three (143) of the pot entially meritorious claimsraised in the secondpetition as there are n o grounds by which to conclude that petitioner has abusedthe writ. Ii PROCEDURAL BACKGROUND. At hisfirsttrial, petitioner was foundguilty of second degree murder as to CountI, andfirst-degree murderas to Counts Il and Il]. Relative to CountIIL, the jury found that the lewd and lascivious act special circumstance allegation was not true. The jury found the al legation that petitioner had committed two additional murders as alleged i n Counts I and I true. (CT 1 248). Petitioner was sentenced to death. (CT 1262). On automatic appeal, this Court reversed all convictions. (P eople v. Memro(1) (1985) 38 Cal.3d 658). The remittitur was issu ed on August 23, 1985. On April 1, 1987, petitioner's second capital trial began. (CT 382). On May 19, 1987, the jury found petitioner guilty of second degree murder (Count J), first degree murder (Count I}, and first degree murder with a multiple murder special circumstance allegation (Count III) . (CT 445). 8 In addition to the facts and circumstances ofthe crimes as presented during the guilt phase, the prosecution presentedthe testimony oftwo witnesses during the penalty phase. (See RT 2905 and 2920). The only witnesses presented by the defense were petitioner and his sister. (See R T 2942; and 2969). On June 11, 1987, the jurors returned a death verdict. (CT 565). On July 17, 1987,after the trial court denied his motionsto strike the spe cial circumstance allegation, to reduce the penalty of death, and for a new trial, petitioner was sentenced to death. (CT 577). On February 2, 1987, Thomas Nolan was appointed to conduct petitioner's automatic appeal and habeas corpus proceedings beforethis Court. This Court also authorized Andrew Parnes to work on petitio ner's case. On October 1, 1993, appellant's opening brief wasfiled, which raised forty-six (46) claimsof error on automatic direct appeal.° On June 6, 1 994, respondent's brief was filed. On October 27, 1994, petitioner's reply b rief was filed. On December 30, 1995, this Court affirmed the judgement in its entirety. (People v. Memro(II) (1995) 11 Cal.4th 786 (as modified o n denial of rehearing Feb. 14, 1996). 6 In the secondpetition, the claims are numberedas Claims1, 2,3, 4,5, 6, 8, 9, 10, 17, 19, 24, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 41, 47, 4 8, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 70, 73, 80, 81, 82, 11 2, 123, and 128. (See traverse exhibit A (Chart of Claims)). 9 On January 20, 1995, petitionerfiled a petition for writ of h abeas corpus in this Court (first petition). The first petition contai ned twelve (12) claimsof error, two of which were repeated from the appeal.’ On June 28, 1995, the petition was denied on the merits. On June 14, 1996, Stanley Greenberg was appointed by the Di strict Court for the Central District of California to represent petiti oner in federal habeas corpus proceedings. (Reno v. Calderon (C.D.C.A. 1 996) 2.96-cv- 02768-CBM (USDCDoc.#8)). On January 30, 1997, Nicho las Arguimbau was appointed as second counsel. (Id. (USDC Doe. #15)). O n August 29, 1997, Mr. Greenberg's motion to withdraw as counsel was gr anted. Cd. (USDC Doc. #43)). On December 4, 1997, the District Cour t appointed Michael Abzug as second counsel with Mr. Arguimbauas le ad counsel. (Id. (USDC Doe. #57)). On September 8, 1998, petitioner filed a petition for writ of hab eas corpus with the District Court. (Reno v. Calderon (C.D.C.A. 1996) 2.96- cv-02768-CBM (USDC Doc. #95)). Thepetition raised seve nty-four (74) claims,including the forty-six (46) claims raised in the auto matic appeal and the ten (10) additional claimsraised in the first petition. On May7, 1999, the District Court struck the unexhausted claims and held the federal 7 Tn the secondpetition, the claims are numbered as Clai ms 7, 15, 16, 18, 19, 20, 21, 25, 26, 30, 121, and 122. (See traverse exh ibit A (Chart of Claims)). Thefirst petition repeated two claims raised o n direct appeal (see Claims 19 and 30). Thus, petitioner has presentedfift y-six (56) repetitive claims in the secondpetition, notfifty-eight (5 8 ) as alleged by respondent. 10 petition in abeyance while petitioner exhaustedhis claims in this Court. (Ud. (USDC Doc #119)). Mr. Arguimbau soughtto be appointed by this Court for the limited purposeoffiling the secondpetition pursuantto the District Court's order. (See People v. Memro, (February 4, 2000) S004770 (Court Docket)). This Court denied Mr. Arguimbau's request. (Ud. (April 26, 2000)). On August 16, 2001, the District Court relieved Michael Abzug as counsel and appointed Peter Giannini as second counsel for petitioner. (See Reno v. Calderon, 2:96-cv-02768-CBM (Doc #166). On November19, 2001, the District Court relieved Nicholas Arguimbau as counsel, and made Mtr. Giannini lead counsel. (Id. (Doc. #171)). On December18, 2001, James Thomson was appointed as second counsel by the District Court. (dd. (Doc. #174)). On October16, 2002, this Court appointed Mr. Giannini, Mr. Thomson, and SaorStetler to represent petitioner in state habeas and clemency matters. On May10, 2004, Petitioner filed the second petition for writ of habeas corpusin this Court. On May 20, 2005, respondentfiled the informal responseto the petition. On February 3, 2006,petitioner filed the informalreply to respondent's response. Between February 2006 and March 2010, nothing wasfiled by the parties and this Court took no action on the case, including petitioner's request for funding as prayed for in the second petition. (See second 1] petition, at 520-21). On March 25, 2010,petitioner filed a request for the Court to act on the petition for writ of habeas corpus. This Court did not acknowledge or act on the request. On September 14, 2010, petitioner prepared and mailed a second request asking the Court to act on the second petition. On September15, 2010, this Court issued an order directing: Petitioner Reno ... to show cause before this court, when the matter is placed on calendar, why the petition for writ ofhabeas corpusfiled in this case should not be considered an abuse ofthe writ for the following reasons: (listing eight reasons, briefed herein). (Traverse exhibit B (September 15, 2010, Order to Show Cause) (citations omitted; and emphasis added)). The next day, on September 16, 2010, this Court amendedits September15, 2010 Order to Show Cause as follows: The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause before this court, when the matteris placed on calendar, whether the petition for writ of habeascorpusfiled in this case should be considered an abuse of the writ, for the following reasons: (listing eight reasons, briefed herein) (amendment of order emphasized). (Traverse exhibit C (September16, 2010, Order to Show Cause) (citations omitted; and emphasis added)). On November 16, 2010, respondentfiled its return to the petition (return). Petitioner now files his traverse to respondent’s return (traverse). UI. INCORPORATION. Petitioner hereby incorporates and realleges by reference each and every paragraph alleged in the second petition filed in May 2004, and the 12 informalreply filed in February 2006, as if fully set forth herei n. Petitioner also incorporatesall exhibits appendedto the petition and info rmal reply as if fully set forth herein. By this incorporation,petitioner also i ncorporates the incorporation section of his second petition. (See second p etition, at 21- 24), IV. ORDER TO SHOW CAUSE. This Court ordered respondent to show whetherthe petition fo r writ of habeascorpusfiled in this case should be considered an a buse ofthe writ. Respondent wasdirected to answer eight questions as t o whether the second petition should be denied for: (1) Failure to allege sufficient facts indicating the claims in the petition are timely or fall within an exception to the rule req uiring timely presentation of claims (/n re Robbins (1998) 18 Cal4th 770, 780-781; and Clark, supra, 5 Cal.4th, at 797-798); (2) Failure to allege sufficient facts indicating certain claims in the petition are cognizable despite having been raised and rejec ted on appeal Un re Waltreus (1965) 62 Cal.2d 218, 225; and In re Harri s (1993) 5 Cal.4th 813, 829-841); (3) Failure to allege sufficient facts indicating certain claimsi n the petition are cognizable despite the fact they could have been r aised on appeal but were not (Un re Dixon (1953) 41 Cal.2d 756, 759 ; and Harris, supra, 5 Cal.4th at 829-841); 13 (4) Failure to allege sufficient facts indicating certain claimsin the petition are cognizable despite having beenraised and rejected in petitioner's first habeas corpus proceeding, In re Memro on Habeas Corpu s, S044437, petition denied June 28, 1995 Un re Miller (1941) 17 Cal.2 d 734, 735); (5) Failure to allege sufficient facts indicating certain claims in the petition are cognizable despite the fact they could have beenraised in the first petition (Clark, supra, 5 Cal.4th at 774-775; and In re Horowitz (194 9) 33 Cal.2d 534, 546-547); (6) Failure to allege sufficient facts indicating that claims of insufficient evidenceattrial to support a conviction are cognizable in a petition for a writ of habeas corpus (Exparte Lindley (1947) 29 Cal.2d 709, 723); (7) Failure to allege sufficient facts indicating that claims based on the Fourth Amendmentare cognizable in a petition for a writ of habeas corpus (Un re Sterling (1965) 63 Cal.2d 486, 487-488; and Jn re Sakarias (2005) 35 Cal.4th 140, 169); and (8) Raising legal issues related to petitioner's first trial, when his conviction and sentence resulting from thattrial were reversed by this cou rt (Memro, supra, 38 Cal.3d 658), absent any plausible explanation why su ch alleged errors affected the fairness of his subsequentretrial. 14 V. STATEMENTOF FACTS. Current counselare the first attorneys to prepare a single petition for writ of habeas corpus consisting ofall "potentially meritorious claims" in petitioner's case. Following appointmentby this Court in October 2002, counsel prepared andultimately filed the second petition on May 10, 2004. Counsel identified, researched, investigated, developed, drafted, and presented the one-hundred-forty-three (143) potentially meritorious claims raised in the secondpetition within thirty (31) months of appointment by the federal court and seventeen (17) months of appointment by this Court. This work included developing eighty-seven (87) potentially meritorious claims that appellate and prior habeas counselhad failed to identify, investigate, develop, or presentto this Court.’ Counsel prepared andfiled the second petition in less time than the thirty-six (36) month period granted to newly appointed counsel to file a habeaspetition under this Court's current Policies. See Supreme Court Policies Regarding Cases Arising From Judgments of Death (eff. June 6, 1989, mod. eff. December 21, 1992) std 1-1.1. Here, the secondpetition wasfiled without substantial delay and in accordance with the three phases 8’ The non-repetitive claims are Claims 11, 12, 13, 14, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 46, 50 51, 52, 53, 54, 55, 64, 69, 71, 72, 74, 75, 76, 77, 78, 79, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 118, 119, 120, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. (Seetraverse exhibit A (Chart of Claims)). 15 outlined in this Court's Policies. (See Sanders, supr a, 21 Cal.4th at 707). During the preliminary phase, current counsel review ed the record, trial counsel's casefiles, and the appellate briefs. (See traverse exhibit H. (Declaration of Peter Giannini), at 4-9). Counsel also discussed the claims with associate counsel and Reno. (/d.). This requir ed review of more than forty (40) banker boxes of materials from prior couns el, prior investigators, petitioner, law enforcement agencies, the attorney gene ral's office, and the California Department of Corrections. (Id. at 9). Re view of thesefiles began within the first week of counsel's appointment a nd was not completed until April 23, 2003. (Ud., at 5). During this time, c ounselfirst realized that prior habeas counsel had performed ineffectively by failing to identify and presentpotentially meritorious claims and exculpato ry evidence ondirect appealorinthefirst petition.” (ld.at 6). In the second,or investigative phase, counsel promptl y and diligently investigated the potentially meritorious claims that h ad been identified based upontriggering facts inside and outside the re cord. (See traverse exhibit H (Declaration of Giannini, at 6)). Beginning as early as January 2002, and through April 2003, counsel began investigati ng claims based on ° Potentially meritorious claims, and exculpatory eviden ce, existed which prior counsel hadfailed to identify, develop, and presentto this Court on direct appeal and in thefirst petition. These claims were based upon triggering facts that were in the record or were readily identifiable with reasonable investigation. Current counsel was thus f orced to develop the repetitive and non-repetitive potentially meritorious c laims,as well as, a primafacie case of prior counsel's ineffectiveness. (S ee traverse exhibit H (Declaration of Giannini, at 6). 16 the improperuse of informants, petitioner's actual innocence, prosecutorial misconduct, Brady violations, trial court error and ineffective assistance of counsel. (/d., at 6-7). During this time, counsel did not waste any resources or investigate non-meritorious claims. (Jd. at 4). Counselstrictly focused on the investigation of claims with readily identifiable facts and the developmentof claims with supporting evidence sufficient to establish a primafacie claim oferror. (/d. at 11). On April 23, 2003, the second phase was completed when Mr. Giannini's office finished and delivered a draft version ofthe federal petition to Mr. Thomson's office. (See Jd., at 11). From April 23, 2003 to May 10, 2004, Mr. Thomson's office completed the third and final phase of preparing the second petition, ensuring that it containedall potentially meritorious claims in petitioner's case, and filing the document with this Court. (See traverse exhibits I and J (Declaration of James Thomson,at 3-4; and Declaration of Saor Stetler, at 3-4)). During this time, Mr. Stetler and Mr. Thomsonreviewed the case record; analyzed the claims in the draft petition; addressed co-counsel’s concerns regarding various claims; further developed the legal and factual basis of seven claims; edited the draft petition; winnowed out non-meritorious issues; refined the substantive allegations; checked and added recordcitations; researched and added additional case law; investigated the factual backgroundofthe claims, and finished drafting the habeas corpus claims. (See generally traverse exhibits I and J (Declarations of Thomson andStetler)). 17 Between April 2003 and May 2004, Mr. Stetler also reviewed the factual and legal bases of the non-repetitive claims with Reno. (See traverse exhibit J (Declaration of Stetler, at 3)). Reno had not previously been informed about the existence of the potentially meritorious claims. (See traverse exhibit K (Declaration of Reno,at 2)). In fact, he was under the impressionthat prior counsel had presentedall potentially meritorious claims in the 1993 opening brief and in the 1995 petition. (/d.). After his discussions with Mr. Stetler, Reno authorized and directed counselto raise all one-hundred-forty-three (143) potentially meritorious claims in the secondpetition. (See /d.). On May10, 2004, counselfiled the second petition on behalf of petitioner. The petition was filed as soon as counsel had developed a primafacie case for each ofthe one-hundred-forty-three (143) claims of error and of prior habeas counsel's ineffectiveness. The second petition did notinclude any claims that lacked potential merit. (See traverse exhibits H, I, J, and M (Declaration of Giannini, at 11; Declaration of Thomson,at 4; Declaration of Stetler, at 4; and Declaration of Van Winkle,at 5-6). Counsel did so in accordance with this Court's dictates in Sanders, supra, 21 Cal.4th at 707, and included only potentially meritorious claims that were supported by a primafacie case. Ud.). On December 20, 2010, Mr. Thomson contacted Mr. Nolan and informed him that this Court had issued an order to show cause in the case. Ud). Mr. Thomson requested a meeting with Mr. Nolan to address the matters posed by this Court. (See 18 traverse exhibit I (Declaration of Thomson,at 4-5). M r. Nolan was provided with copies of the 1993 opening Brief, 1995 petition, and each of the eighty-seven (87) non-repetitive claims included within the 2004 petition. After review ofthe briefing, Mr. Nolan determined t hat he had not previously identified the factual or legal basis of any of the eighty-seven (87) non-repetitive claims, though the triggering facts w ere readily identifiable. He believed that five of the claims shoul d not have been previously raised. He could not determine whether el even (11) claims should have beenraised earlier.'? He determined that seventy-one (71) of the claims werepotentially meritorious and should have been raised in the 1993 opening briefor in the 199 petition.'' (See travers e exhibit L (Declaration of Thomas Nolan,at 3-5). As to the claims that Mr. Nolan admitted should ha ve been raised, he confirmedhad he identified or considered the legal b asis for the claims, he would have certainly included them within either the 1993 opening brief or 10 Mr. Nolan believed that Claims 72, 79, 84, 93, and 106 should not have been raised. (See traverse exhibit L (Declaratio n ofNolan, at 3). Mr. Nolan could not determine whether he would ha ve included Claims 46, 55, 76, 95, 96, 97, 98, 102, 103, 104, and 105 in the pet ition. U/d.). These include Claims 11, 12, 13, 14, 22, 23, 34, 35, 36 , 37, 42, 43, 44, 45,50 51, 52, 53, 54, 64, 69, 71, 74, 75, 77, 78, 83, 85, 86, 87, 88, 89, 90, 91, 92, 94, 99, 100, 101, 107, 108, 109, 110, 111 , 113, 114, 115, 116, 117, 118, 119, 120, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. (Se e traverse exhibit L (Declaration of Thomas Nolan)at 3-4). 19 the 1995 petition. (/d.). He also confirmed that there was no strategic decision for his failure to present the claims, as he neveridentified, investigated, or developed the factual and legal bases for the claims. (/d.). Therefore, at the time he represented petitioner, he could not have reasonably concludedthat the claims lacked merit. (See Id., at 3-5). VI. ARGUMENT. The amended order to show cause issued in petitioner's case directed respondent to demonstrate why the second petition should be considered "an abuse of the writ." (See traverse exhibit C (September 16, 2010 Amended Order to Show Cause). Abuseofthe writ is parlance typically reserved for procedural default adjudications in federal court. (See McCleskey v. Zant (1991) 499 U.S. 467). This Court, while discussing "abusive writ practices" (see Clark, supra, 5 Cal.4th at 775), has never created a procedural default bar based exclusively on "abuse of the writ." Thus, there are few examplesin this Court's case law demonstrating whatit might consider to be an "abuse of the writ." There are, however, several examplesofpotentially "abusive"petitions which, instead of rebuking, this Court has sanctioned. Following issuance of Sanders and since 2000, this Court has denied on the merits: 1) two "comprehensive" exhaustion petitions that included all repetitive and non-repetitive claims in the petitioner's case;)” 2 See In re Demetrulias, (S160990) (four-hundred-twenty (420) page successive petition); and /n re Gates (S060078) (two-hundred-sixty- 20 2) fifteen (15) successivepetitionsthat are the third, fourth, fifth, or sixth successivepetition filed in the petitioner's case; 3) multiple successivepetitions filed by three individual petitioners;'* 4) three successivepetitions alleging ineffective assistance of appellate and habeas counsel.’ (See traverse exhibit D (Merits Denials Of Successive Petitions Since Jn re Sanders (1999) 21 Cal.4th 697). Finally, in the case of Teofilo Medina,this Court has denied two successivepetitions on the merits, two successive eight (268) page sixth successivepetition). 3 See In re Farnam (S122414)(third successive petition); Jn re Price, (8139574)(fourth successive petition); In re Cain (S152288) (fourth successive petition); In re Marlow (S108267 and S101172) (fifth and sixth successive petitions); In re Mattson (S116812) (fifth successive petition); Jn re McDermott (S155331)(third successivepetition); Jn re Morales (S158610)(fifth successivepetition); /n re Kelly (S143981)(sixth successive petition); In re Turner (S120388) (third successive petition); Jn re Medina (8116444 and $116476)(fifth and sixth successive petitions); In re Sanders (S094849)(third successive petition); and Jn re Gates (S060624 and $060778) (fifth and sixth successivepetition). 4 See In re Marlow (S108267 and $101172) (fifth and sixth successive petitions); In re Gates (S060624 and S060778) (fifth and sixth successive petition); and In re Medina (S116444 and S116476) (fifth and sixth successive petitions). 'S See In re Espinoza (S116824) (second successive petition), In re Sanders (8094849) (third successive petition); and Jn re Gates (S060624) (fifth successive petition). 21 petitions as untimely, and onepetition as cumulative. (Id.).'° A review of this precedentthus establishes no examplesofpetitioner's "abus[ ing] the writ," but provides several examples demonstrating why petitioner d id not abuse the writ here. Reno's petition should not be considered an "abuse of the writ" because noneof his claims should be dismissed based upon any of the various procedural bars discussed in the amended order to show c ause. Respondent contends that in addressing its arguments regarding pr ocedural bars, this Court should consider paramountthe state's "interest in th e finality of its criminal judgments.” (See return,at 4 (quoting Harris, supra , 5 Cal.4th at 834)). While this Court has considered thestate's intere st in the past, it has found that when comparing "the need for [habeas revi ew] with the state's need forfinality ofjudgments, the individual's need[is] the greater one." (Id. at 832). Thus,this Court allows for the filing of successive petitions "subject to undefined exceptions." (Clark, su pra, 5 Cal.4th at 768). In its return, respondentfails to note that this Court supports the use of successive petitions becauseit is "wise[] [to] hold open a f inal possibility for prisoners to prove their convictions were obtained unjustly." (San ders, 16 Mr. Medina’s first merits petition was denied on the merits. (See S017627). The secondpetition was denied as untimely. (See 030938 ). Thethird petition was denied as cumulative. (See $056590). The fou rth petition was denied as untimely, save a single claim alleging appell ate counsel's ineffectiveness. (See $058051). The fifth petition was den ied on the merits. (See $116444). Finally, the sixth petition was denied on the merits. (See $116476). 22 supra, 21 Cal.4th at 703 (citing U.S. Con., art. I, § 9, cl. 2; and Cal. Con, art. I, § 11)). The decision to hold open "a [final] possibility” corresponds with this Court's description of the writ as the "greatest remedy knownto the law whereby one unlawfully restrained ofhis liberty can secure his release..." (See Clark, 5 Cal.4th at 763-764 (quoting Matter ofFord (1911) 160 Cal.334, 340)). The writ of habeas corpusis the only remedy (besides the writ of coram nobis) that can provide "an avenue ofrelief to those unjustly incarcerated when the normal method of relief - i.e., direct appeal- is inadequate." (Harris, supra, 5 Cal.4th at 828 (footnote omitted)). In fact, this Court has found that it would be "unprecedented"to burden the Great Writ with a statute of limitations (Clark, supra, 5 Cal.4th at 795 n. 30); a finding compelled by the California Constitution. (See /d., at 764 n. 2 (quoting California Con. Art. I, section 11) ("Habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion.")). At the sametime, petitioner recognizes that this Court has soughtto place limits on the use of successive petitions. The order to show cause issued in this case supplies a survey of the case law and the many hurdles facing a petitioner when presenting a successive petition. The restraints serve legitimate state interests of finality, but "the manifest need for time limits on collateral attacks on criminal judgments [ | must be tempered with the knowledgethat mistakes in the criminal justice system are sometimes made." (Sanders, supra, 21 Cal.4th at 703). Indeed, "[d]espite the substantive and proceduralprotections afforded those accused of 23 committing crimes, the basic charters governing our society wisely hold open a final possibility for prisoners to prove their convictions were obtained unjustly." (/d. (citing U.S. Const., art. I, § 9, cl. 2 (jimiting federal government's powerto suspend writ of habeas corpus); Cal. Const., art. I, § 11 (limiting state government's power to suspend writ of habeas corpus)). The result is a noticeable tension betweenthestate’s interests in finality and the constitutional mandate that habeas corpus remain open "unless required by public safety in cases of rebellion or invasion." (California Con.Art. I, section 1). The tension permeates the complex and interwovenset of discretionary procedural default laws, adopted bythis Court, that govern when the merits of a successive petition may be entertained. (See Sanders, supra, 21 Cal.4th at 700). In capital cases, wherethe state seeks to extinguish a citizen’s life and the writ stands as the only procedure between the petitioner and the irrevocable punishment of death, the tension is at its greatest and is causing gridlock throughout California’s capital appeals system, and inconsistencies in this Court’s case law regarding successivepetitions." 17 Petitioner is aware that in Walker v. Martin the United States Supreme Court recently issued a narrow holding finding that there is "no inadequacyin California's timeliness rule" and that this Court's timeliness procedural default lawsare "firmly established and regularly followed." Walker v. Martin (2011) 562 U.S.__, 7 and 13 (2011 WL 611627). There, the Supreme Court found that this Court's timeliness rubric, under Clark, Robbins, and Sanders, precluded federal court review of habeas claims dismissed as untimely even though "California courts may elect to pretermit the question whethera petition is timely and simply deny the petition, thereby signaling that the petition lacks merit." (/d., at 2). The holding in 24 This Court has "condemned piecemeal presentation of known claims,” but has also foundthat such presentation may be justified i f "adequately explained." (Clark, supra, 5 Cal.4th at 774). This C ourt has recognized that "delayed and repetitious presentation of claimsis an abuse of the writ" (/d. at 769), while noting thatits "decisions have consis tently required that a petitioner explain and justify any substantial delay i n presenting a claim." (Jd. at 783 (citing In re Swain (1949) 34 Cal.2 d 300, 304). The flexibility of this Court's approach has been deemed an a sset (see Clark, supra, 5 Cal.4th at 780), and also earned unflattering appraisa las amorphous,"arbitrary," "capricious," and “discretionary.” (S ee Sanders, supra, 21 Cal.4th at 716 and 726 (concurring opn.., Mosk,J.).'8 As a result, this Court has notclearly identified what constitutes an abuse of th e writ, and has instead crafted a set of procedural rules, which allow for the filing of successive, delayed, andrepetitive petitions "subject to unde fined Walker does not affect petitioner's case and the question he poses to this Court, whichis “[w]hether some action or inaction by counselshort of the abandonmentthat occurred here could also constitute good cause underthe Supreme Court Policies Regarding Cases Arising From Judgments of Death.” (Sanders, supra, 21 Cal.4th at 701-02 n.1). 8 Indeed, this Court has recognizedthatits timeliness rules are discretionary. (See Clark, supra, 5 Cal.4th at 768) (“[o]n occasion , the merits of successive petitions have been considered regardless of whether the claim wasraised on appealorin a prior petition, and witho ut consideration of whether the claim could and should have been pr esented in a prior petition.") (citing /n re Walker (1974) 10 Cal.3d 764; In re Crumpton (1973) 9 Cal.3d 463, 467; Inre Terry (1971) 4 Cal.3d 911; and In re Bevill (1968) 68 Cal.2d 854). N O A exceptions." (Clark, supra, 5 Cal.4th at 768).” Before submitting a successive petition, whether due to prior ineffective assistance of counsel, an impending execution,or as a result of other state errors or misconduct, capital habeas counsel mustresolve several questions with little guidance from this Court’s case law. Among the questions is: 1) whethera repetitive claim should be resubmitted for exhaustion purposes; 2) if a non-repetitive, but potentially meritorious, claim shouldbe raised for the first time; 3) whether prior counsel committed ineffective assistance by failing to identify, research, investigate, file, and competently present potentially meritorious claims;”’ and 4)if grounds excusing other applicable proceduralbars are available and justified in the particular case. Without further guidance from this Court’s case law, the only way that counsel can affirmatively resolve these questionsin their client’s favor and ensure competent and effective 9 According to the Habeas Corpus Resource Center, the description of this Court's timeliness framework as "amorphous" may havespurred this Court to issue the order to show cause in this case. See Walker v. Martin (U.S. 2011) Brief Amicus Curiae of the Habeas Corpus Resource Center in Support of Respondent, 2010 WL 4278489,at 10 n. 6. ("Perhaps in an effort to provide somecontoursto the ‘amorphous’ terms of the timeliness rule, the California Supreme Court recently issued an Order to Show Cause in In re Reno, $124660, to address the application of multiple procedural bars, including thetimeliness rule.”). 2 In instances wheretrial, appellate, or prior habeas counselhas performed ineffectively in presenting a prior appealor petition, a capital petitioner's constitutional and statutory rights to effective assistance of counsel compel review of the merits of the claims includedin the successivepetition. (Cf. Sanders, supra, 21 Cal.4th at 719). 26 representation is to identify, investigate, develop, and present, in a s ingle petition, “all potentially meritorious claims"affecting their client’s conviction(s) and sentence(s). (Clark, supra, 5 Cal.4th at 780). ere, to determine whetherpetitioner's second petition may be heard on the merits, this Court must determine whetherpetitioner received effective assistance from his trial, appellate, and prior habeas counsel. Unfortunately, for all, petitioner is the victim of serial ineffective assistance of counsel, andthis Court has not previously been presented with an appeal and a habeascorpuspetition that included “all potentially meritorious claims.” (Clark, supra, 5 Cal.4th at 780). To vindicate the violation of petitioner's constitutional rights, his current counsel - to perform effectively and in accordance with this Court’s case law and state and federal constitutional mandates - hadto file the secondpetition raising the one- hundred-forty-three (143) claims. (See traverse exhibit M (Declaration of Van Winkle, at 4). Each of the claims presented in the secondpetition are meritorious and should have been identified, investigated, filed, and competently presented to this Court by prior appellate and habeas counsel in petitioner’s prior direct appeal andfirst petition. Fifty-six (56) claims in the second petition were previously raised and are repetitive.’ Eighty-seven (87) 1 Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 17, 19, 24, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 41, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 70, 73, 80, 81, 82, 112, 123, and 128, were brought as claimsof error on direct appealin petitioner's secondtrial. Claims7, 15, 16, 18, 19, 20, 21, 25, 26, 121, and 122 were brought as claims of error in petitioner's prior 27 claimshave not been raised before? They include several claims premised on the violation ofpetitioner’s fundamental constitutional rights;” petitioner’s actual innocence and reduced culpability;andhis trial counsel’s unconstitutionally deficient failure to present a defense and evidence in mitigation despite the existence of identifiable and credible evidence’ As a result, there is no abuse of the writ here, and this Court may review the merits of each claim presentedin petitioner’s second petition. (See Sanders, supra, 21 Cal.4th at 719). Regarding the repetitive claims, respondent first miscounts the numberofclaims included in the secondpetition, which were previously submitted to this Court on direct appealor in the first petition. There are fifty-six (56) repetitive claims included in the second petition.”° state habeas proceedings. Claim 19 is the only claim that was raised on both direct appeal and in the first petition. 2 In the secondpetition, petitioner presents the following claimsto this Court for the first time: Claims 11, 12, 13, 14, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 46, 50, 51, 52, 53, 54, 55, 64, 69, 71, 72, 74, 75, 76, 77, 78, 79, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 118, 119, 120, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. 3 See Claims 11, 13, 14, 23, 36, 42, 43, 44, 45, 46, 77, 79, 83, 93, 95, 97, 99, 100, 113, 114, 115, 117, 118, 119, 149, and 143. 4 See Claims 86, 87, 105, 107, and 110. 25 See Claims 108, 109, and 111. 26 Respondent counts non-repetitive claims that were never raised in a prior direct appeal or habeaspetition as repetitive claims. 28 Respondentthen erroneously argues that each repetitive cla im should be dismissed or denied on the merits. In actuality, eachoft he repetitive claims are timely and may be considered onthe merits for a variety of reasons; including the cumulative error analysis. Respondent also miscounts the number of non-repetitive cla ims included in the second petition and erroneously argues that ea ch claim should be dismissed. In actuality, eighty-seven (87) claims in the second petition have not been previously submitted to this Court,”’ a nd each of the non-repetitive claims may be heard by this Court on the basi s of appellate and prior habeas counsel's ineffective assistance in failing to identify, investigate, develop, and present“all potentially meritorio us claims." (Clark, supra, 5 Cal.4th at 780; and Sanders, supra, 21 Cal.4th at 707). Accordingly,petitioner urges this Court to answer, in the af firmative, the question left open in Jn re Sanders, “Tw]hether someaction or inaction by counsel short of the abandonmentthat occurred here could a lso constitute good cause underthe Supreme Court Policies Regarding C ases Arising From Judgments of Death." (Sanders, supra, 21 Cal.4th at 701-02 n.1). Here, the logic of Sanders and Clark should be extended and this Court may review the non-repetitive claims in the second petition bas ed on prior counsel’s ineffective assistance and the merit of t he claims. 27 Respondent counts repetitive claims, that were previously r aised in the direct appealorfirst petition, as non-repetitive claim s. 29 In this traverse, petitioner demonstrates with specific and particularized facts, that the secondpetition was not filed with substantial delay, or that any delay in the filing is justifiable.** Current counsel were required to allege all one-hundred-forty-three (143) claims in his second petition to effectively representpetitioner in accordance with statutory, constitutional, and this Court's mandates. Moreover,all potentially meritorious claims were presented here in a single petition - a feat not undertaken or accomplishedbypetitioner's appellate and prior habeas counsel. Asa result, petitioner has demonstrated good cause justifying the filing of his successive petition and thefiling of his non-repetitive claims,” 28 Petitioner's counsel recognizetheir mistake in not including declarations of counsel within the second petition or informal reply filed earlier. (See Robbins, supra, 18 Cal.4th at 789 n. 16). This mistake may be remedied with the filing of counsel's declarations withthe traverse, including appellate and prior habeas counsel's declaration, acknowledging that seventy-one (71) ofthe claims should have been filed by him earlier. (See generally traverse exhibit L (Declaration of Nolan)). As this Court observed in Sanders, "mistakes in the criminal justice system are sometimes made." (Sanders, supra, 21 Cal.4th at 703). In both Robbins and Sanders, this Court considered the matters and resolved similar issues based on the declarations attached to the traverse. Moreover, the issuance of an orderto show cause grants the petitioner the opportunity to present additional evidence in support ofthe truth of the allegations in the petition. Ud. at 480; see also Clark, 5 Cal.4th at 781 n. 16; In re Hochberg (1970) 2 Cal.3d at 876, n. 4; In re Serrano (1995) 10 Cal.4th 447, 456; In re Azzarella (1989) 207 Cal.App.3d 1240, 1246). Accordingly, in his secondpetition, petitioner reserved the right to supplement his allegations should anorder for cause be issuedin his case or should he become aware of additional claims oferror. (See second petition, at 21). 2° Before petitioner could file the secondpetition, counsel was forced to: wait for the full disclosure ofall exculpatory evidence by the state and 30 and petitioner demonstrates that respondenthasfailed to show that the secondpetition was an abuse of the writ. Petitioner's second pe tition should be consideredin its entirety and on the merits.” A. PETITIONER HAS ALLEGED PARTICULARIZE D FACTS SUFFICIENT TO PROVE THAT HIS CLAIMS ARE TIMELY OR ARE OTHERWISE COGNIZABLE. In its return, respondenthasfailed to show that petitioner has abused the writ for "failure to allege sufficient facts indica ting the claims in thepetition are timely or fall within an exception to the rule requiring timely presentation of claims.” (Orderto Show Cause - Issue #1 (citing Robbins, supra, 18 Cal.4th at 780-781; and Clark, supra, 5 Cal.4th, at 797-798)). Petitioner denies that his second petition is untimely andthati t should be dismissed as successive. (Contra return, at 7). Pet itioner admits that fifty-six (56) of the one-hundred-forty-three (143) claimsrais ed in the prior counsel; conduct a full investigation of the case; re view the records of the case; develop aprimafacie case for each claim, and develo p a prima facie case justifying the excusal of procedural bars. This feat was accomplished within thirty (30) months of counsel’s appointmen tin federal court and within seventeen (17) months of their appointmentin t his Court. 30 Afier addressing the procedural bars in this case, petitioner requests that this Court promptly issue a separate order addressing the merits of each ofthe claimsin the secondpetition. (See Jn re Ham ilton (1999) 20 Cal.4th 273, 307; Robbins, supra, 18 Cal.4th at 813-8 14; In re Gallego (1998) 18 Cal.4th 825, 838). 31 second petition were previously raised before this Court on direct appeal or in the first petition and were rejected on the merits?’ However, eighty- seven (87) meritorious claims, premised on fundamental constitutional errors, newly discovered evidence,andtrial counsel's ineffective assistance, have not been presented to this Court before.” Respondent's allegation that ninety-four (94) ofpetitioner's claims are repetitive is flawed,” as its count includes thirty-eight (38) non- 31 Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 17, 19, 24, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 41, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 70, 73, 80, 81, 82, 112, 123, and 128, were brought as claims of error on direct appealin petitioner's secondtrial. Claims7, 15, 16, 18, 19, 20, 21, 25, 26, 30, 121, and 122 were brought as claims of error in petitioner's prior state habeas proceedings. Claim 19 and 30 are the only claims that were raised on both direct appealandin thefirst petition. (See traverse exhibit A (Chart of Claims)). 2 Tn the second petition, petitioner presents the following claimsto this Court for the first time: Claims 11, 12, 13, 14, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 46, 50, 51, 52, 53, 54, 55, 64, 69, 71, 72, 74, 75, 76, 77, 78, 79, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 118, 119, 120, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. (See traverse exhibit A (Chart of Claims)). 33 Respondentarguesthat the repetitive claims include: Claims 1, 2, 3,4, 5, 6, 7, 8, 9, 10, 12, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 44, 45, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71, 73, 77, 80, 81, 83, 84, 86, 87, 89, 90, 91, 92, 93, 94, 96, 98, 100, 101, 102, 104, 107, 108, 109, 110, 112, 11 3, 118, 120, 121, 122, 123, 125, 126, 127, 128, 129, 130, 135, and 140. (Return,at 7). o o ) b o repetitive claims.** Respondentincorrectly counts claims that were no t raised on appealandnotraisedin thefirst petition. Only the eigh ty-seven (87) non-repetitive claims are subject to a timeliness analysis here.” Petitioner denies that whether a petition wasfiled "promptly" determinesthe timeliness ofthe petition. (Contra return, at 7 (cita tion omitted)). The measure of timeliness is whetherthepetition is fil ed within the policy guideline range” or without substantial delay. (Contra Id .). As this Court has held, "a successivepetition will be entertainedonits merits fif] the petitioner [] explain[s] and justiffies] the failure to present cl aims in a timely mannerin his prior petition or petitions.""’ (Clark, supra, 5 Cal.4th at 774). And,if a petitioner cannot show proper justification, he m ay 34 Respondentincorrectly concludesthat the following claims are repetitive: Claim 12, 34, 36, 37, 44, 45, 69, 71, 77, 83, 84, 85, 86 , 87, 89, 90, 91, 92, 93, 94, 96, 98, 100, 101, 102, 104, 107, 108, 110, 113, 118, 120, 125, 126, 127, 130, 135, and 140. (Return,at 7). 35 None ofpetitioner's non-repetitive claims should be procedurally barred as untimely and none should be denied under Dixon, supra, Al Cal.2d 756. 36 See Supreme Court Policies Regarding Cases Arising From Judgments of Death, eff. June 6, 1989, mod.eff. December 21, 1992, stds. 1-1.1 to 1-3 [Policies]. 37 Indeed, the Court's use of the language "prior petition or petitions" showsthat the court expected there to be situations in whichpetitioners were in Court after having already filed a second, third, or fourth habeas petition. Not so here. Thisis petitioner's second petition and his form er counsel admits that seventy-one (71) of those claims should have been f iled on appealorin the first petition. (See traverse exhibit L (Declaration of Thomas Nolan,at 4). nevertheless show that his case qualifies for review underoneofthe miscarriage ofjustice exceptions. In capital cases, a habeas corpuspetitioner bears the burden of establishing the timeliness of his or her petition, which timeliness can be shown in one of four ways (in descending order): (I) the petition is presumptively timely, having been filed within [one-hundred-eighty days] of the filing of the reply brief on appeal; (ii) even if not presumptively timely, the petition was filed without substantial delay; (iii) even if the petition was filed after a substantial delay, good cause justifies the delay; or (iv) even ifthe petition wasfiled after a substantial delay without good cause, the petitioner comes within one of the four Clark exceptions. (Sanders, supra, 2\ Cal.4th at 705 (emphasis omitted)). In this reg ard, this Court reviews the entire petition for timeliness - not each individua l claim - a method whichis reserved for the miscarriage ofjustice exceptio ns. Here, petitioner filed his second petition as soon as he gathered sufficient legal and factual bases for aprimafacie case for each of the potentially meritorious claims and a primafacie case for excusal of procedural bars. Further, any "delay" in the filing of the second peti tion is not substantial or is justified by good cause. In the second petiti on, petitioner set out several reasons justifying any delay. (See second petition at 20, 21, and 22; see also informalreply at 3). Moreover, petitioner has alleged with specificity, facts demonstrating when information offered in support of the second petition 34 "was obtained, and that the information neither was known, nor reasonably should have been known,at anyearlier time." (Robbins, supra, 18 Cal.4th at 780; see generally traverse exhibits H,I, and J (Declarations of Giannini, Thomson,andStetler). Petitioner has alleged the claimsin his petition that were "recently [] discovered." (Robbins, supra, 18 Cal.4th at 780). He has not "assert[ed] that second or successive postconviction counsel could not reasonably have discoveredthe information earlier." (Contra /d.). He has not simply produced "declaration[s] from present or former counsel to that general effect.” (Contra Jd.). He has demonstrated that prior counsel performedineffectively by failing to identify, investigate, and develop the potentially meritorious non-repetitive claims presented in his second petition. Prior counsel has admitted that he did not identify the triggering facts, conduct investigation, or reasonably determine whetherthe claims had potential merit. (See traverse exhibit L (Declaration of Nolan,at 4-5). However, having now reviewed the many additional potentially meritorious claims in petitioner's case, former counsel admits that they should have beenraised earlier and would have been raised had counsel identified the factual and legal bases for the claims. (/d.). 1. This Court Should Review the Timeliness of Petitioner's Second Petition and Should Not Conduct a Timeliness Analysis of Petitioner’ Non- Repetitive Claims Based on an Individual Claim- By-Claim Basis. Respondenttries to suggest that petitioner's counsel are "confus[ed]" regarding this Court's timeliness analysis. (See return,at 8). However,it is 35 respondentthat expresses "confusion" by demanding that the petition be dismissed as untimely some times; while at other times, demandingthat individual claims be dismissed as untimely. (/d.). While this Court's case law does notclearly indicate when timeliness analysis concerns an entire petition or individual claims,”*the logic and language ofits precedent goes against respondent's argumentthat the "timeliness bar should be analyzed and applied on a claim-by-claim basis.” (/d.). Before this Court’s Policies regarding timeliness had been formulated in Clark, the Court addressed a challenge to the timeliness of a habeaspetition on a case by case basis. (Clark, supra, 5 Cal.4th at 765 n. 5). This Court recognized the "legitimate concern that a habeas corpus petition should befiled as promptly as the circumstances of the case allow." (In re Stankewitz (1985) 40 Cal.3d 391, 397 n.1(emphasis added)). The Court, however, ultimately found that even an untimely petition will be reviewed on the merits where thepetitioner “point[s] to particular circumstances sufficientto justify substantial delay" (id.), and reviewedthe merits of petitioner Stankewitz’s untimely petition. Ud.). Following the developmentofthis Court’s Policies, in Clark, this Court relied upon thé quoted footnote in Stankewitz and began formulating its procedural default rules emphasizing that “a petition should be filed as 8 This difference points to the ongoing development ofthis Court's proceduralrules. It also shows whythe procedural rules should not be used against petitioner, who had no notice whether the Court would analyze the timeliness of his claims or petition. 36 promptly as the circumstances allow." (Clark, supra, 5 Cal.4th at 765 n. 5 (emphasis added)). In Clark, this Court held tha t it "will look to what petitioner and/orhis counsel knew at the time of the appealor thefiling of the first habeas corpuspetition, and [] that the fai lure to raise all issues in a single, timely petition be justified." (Ud. at 779 ( emphasis added)). Likewise, this Court noted, that if prior habe as counsel "failed to afford adequate representation in a prior habeas corpus application,that failure may be offered in explanation and justification o f the need to file another petition." (Id. at 780 (emphasis added)). In Clar k, this Court found that "(this petition is not presumptively timely...[and] [t]he petition was not filed within a reasonable time after /n re Stan kewitz, supra, 40 Cal.3d 391." (Clark, supra, 5 Cal.4th at 785-86 (emphasis ad ded)). This Court also found “that petitioner has failed to establish an ab senceof substantial delay in the filing of his petition." (Id. at 786 (emphas is added)). Five years later, this Court held that counsel shou ld not seekto file successive petitions or piecemeal presentations of claims, but instead, should submit all claims in a single successive pe tition. (See Robbins, supra, 18 Cal.4th at 780). This Court recognized that: [g]ood cause for substantial delay may be esta blished if, for example, the petitioner can demonstrate that bec ause he or she was conducting an ongoing investigation into at least one potentially meritorious claim, the petiti oner delayed presentation of one or more other knownclaim s in order to avoid the piecemeal presentation ofclaims. 37 (Robbins, supra, 18 Cal.4th at 780 (emphasis added)).*? Likewise in Robbins' companion case, In re Gallego, this Court found that: a petitioner who has only information that does not rise t o the level of a prima facie claim is not required or expectedto file a petition embodying such a claim, it cannot be said that s uch a petitioner reasonably should have filed a petition raising the undeveloped claim at that earlier time. (Gallego, supra, 18 Cal.4th at 834 (emphasis added)). Three yearslater, in Sanders, this Court resolved to ev aluate the timeliness of an entire petition based on prior counsel's "ab andonment" of his client. (Sanders, supra, 21 Cal.4th at 719). There, this Court found that because prior counsel's inactions affected "petitioner's abil ity to raise any andall of his claims, we neednotin this case determine wh ether any individual claim raised in the petition could have been rais ed earlier." (/d. at 721 n. 13 (citations omitted)). Petitioner urges this Cou rt to adopt a similar timeliness analysis when reviewing successive pet itions alleging ineffective assistance of appellate and habeas counsel. Li ke in Sanders, this Court should thusfindthat petitioner has established the ti meliness of his petition by showingthatit "was filed without substantial de lay," or that “even if the petition wasfiled after substantial delay, good cause justifies 9 Tn Gallego, this Court noted,"[t]he petition is not entitle d to a presumption oftimeliness, because it was notfiled within 90 days after the final due date for the filing of appellant's reply brief on th e direct appeal.[] Accordingly, in order to avoid the bar of untimeliness, petit ioner has the burdenof establishing either (1) absence of substantial dela y, (ii) good cause for the delay,[...] or (iii) that his claims fall within an exc eption to the bar of untimeliness.” (Gallego, supra, 18 Cal.4th at 831 (cita tions omitted) (emphasis added)). 38 the delay." (Id, at 705 (italics in original)). Respondent's argumentto the contrary would placepetitioner, and all other capital petitioners, in a significant legal quandary when det ermining when and whether a successivepetition, containing potentially me ritorious non-repetitive claims that prior counsel ineffectively failed to rais e, should be filed. Resolution ofthe issueis critically important to petitio ners who have no right to amend already-filed petitions with newly develo ped claims, (see Clark, 5 Cal.4th at 781 n.16), and who face a “successor"bar if they file a new petition containing non-repetitive claims. (Id. at 761). (See Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308, 1318 ("the California Supreme Court, in Clark, announcedstrict new standards f or determining whether successive state habeaspetitions should be allowed.") (citing | Clark, supra, 5 Cal.4th at 760)). To clearly establish a workable r ule,in line with precedent, this Court must evaluate, in relation to the dis covery of prior appellate and habeas counsel’s ineffective assistance, the ti meliness of the successorpetition, not individual claims. A timeliness analysis based on a claim-by-claimbasis, as propo sed by respondent, would undermine a basic principle of this Court' s habeas jurisprudence- that claims should not be presentedin a pieceme al fashion. (See Clark, supra, 5 Cal.4th at 767-68).° According to respondent, the 40 Respondent does not quote any supporting case law forits argumentthat this Court evaluates the timeliness of a petition ba sed on a claim by claim analysis. (See return,at 8 (citing Sanders, supra, 21 Cal.4th at 713 n. 13)). Moreover, footnote 13 in Sanders does not app ear at page 39 timeliness clock would begin running as soon as counsel identifie d the basis for a claim (return, at 8). Thus, respondent would have counsel subm it individual claims, or groups of claims, as soon as aprimafacie showi ng of each claim or group is developed. Since there are no fixed guidelines to employ and few examples in this Court's case law, under respondent's analysis, the fear of being found untimely would encourage or require petitionersto file a claim the moment it was formulated. In order to showthat the individual claim was pr esented as quickly as possible andis exempted from dismissal as untimely, counsel would thus haveto file multiple petitions immediately following t he identification, investigation, and developmentof aprimafacie case o f a claim. Ifthe Court were to adopt that proposal, petitioner would have been requiredto file - at a minimum - eighty-seven successive petitions - o ne for each new claim. Assuredly, this approach, would have drawn the ir e of this Court, and likely lead to the dismissal of petitioner's claimssolely o n the successiveness bar. Nevertheless, under respondent's argument ,it would be the only way counsel could have ensured the timely presentation of all “all potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780 (empha sis added)). Respondent's argument would require: 1) the repeatedfiling of successive petitions; 2) the filing of claims that lack aprimafacie basi s; and 3) the filing of successive petitions when no primafacie case for exce ption 713, but rather, at page 719. 40 of the claims under procedural default laws had been developed. Non e of these scenarios coincide with the Court’s aversion to the piecemeal representation of claims. By finding that the timeliness analysis conc erns the entire petition, this Court can reinforce the notion that, whe n filing a successive petition, counsel should include "all potentially meritoriou s claims.” (Clark, 5 Cal.4th at 780 (emphasis added)). Indeed, this Co urt has held that "the purpose of these habeas corpusrulesis to enable this court...to considerall of a petitioner's claims simultaneously and expeditiously, rather than piecemeal." (In re Morgan (2010) 50 Cal.4 th 932, 940). Adopting respondent's claim-by-claim policy will ensuret hat petitioners are permitted, and in fact required,“to try out [their] cont entions piecemeal by successive proceedings attacking the validity of the ju dgment against him." (Ex Parte Connor (1940) 16 Cal.2d 701, 705). For the se reasons,this Court should find that timeliness analysis concerns the e ntire petition and not each individual claim. 2. The Timeliness of Petitioner's Petition May Be Determined Based on The Information Alleged in ThePetition, Informal Reply, and This Traverse. Respondent's attack on petitioner's counsel is misguided. Petitioner's counsel have not "flouted this Court's unambiguousdirective thatall allegations and exhibits submitted in support of any arguments regardi ng the absenceofsubstantial delay or good cause for substantial delay b e includedin the petition itself, not the informal reply or the traverse.” (Return, at 25 (citations omitted) (emphasis omitted)). Nor has couns el 4] "disregarded this Court's clear instruction to provideparticular ized explanations as to [any delay in the presentation of] each claim and [| subclaim." (/d.). Counsel has acknowledged their mistake in not filing counsel's declarations with the second petition. (See, supra, foo tnote 28). To make aprimafacie case of absence of substantial delay, petitioner must demonstrate "due diligence" in his investigation and presentation of claims. (Clark, supra, 5 Cal.4th at 775). Petiti oner must demonstrate that he and counsel did not earlier have "knowledg e ofthe facts upon which he believes that he is entitled to relief." (/d. at 779 (citation omitted)). This Court has found that the showing rest u pon "sufficiently specific allegations” and "refer[] to attached decla rationsthat support the allegations and place them in context." (Robbins, supra, 18 Cal.4th at 795 n. 16). By thepetition, the informal reply and thetraverse,”! petitioner h as now pled sufficient "particulars from which this Court may det ermine when [] counsel knew,or reasonably should have known,of the infor mation offered in support of the claim and the legal basis for the claim s." (Return, 41 Petitioner's counsel recognize that it would have been better to include counsels’ declarations with the second petition or inform alreply. (See Sanders, supra, 21 Cal.4th at 714). Counsel, perhaps , was wrongly focused on the timely development ofthe claims in the secondpe tition, and not on filing the declarations now filed with the traverse. While the references made in the secondpetition may not have reached th e Court's threshold for makingits timeliness determination, there was e nough information to survive a preliminary denial, thus requiring the issuance of an order to show cause. 42 at 26 (citations and bracket omitted)). Likewise, petitioner has identified "when any triggering facts were discovered by his attorneys." He has also specified when "any purported ‘ongoing’ investigations actuall y commenced.” (Compare /d.; with traverse exhibit H (Declaratio n of Giannini, at 3-8). Here, consistency and equal treatment ofpetit ioners necessitate acceptanceofthe factual aversions in the declaratio ns attached to this traverse as in Robbins and Sanders. This Court's action in issuing an order to show cause supports thi s approach. (See Clark, supra, 5 Cal.4th at 781 n. 16 (citing Peop le v. Green (1980) 27 Cal.3d 1, 43 n. 28; and Connor, supra, 16 Cal.2d at 7 11) (emphasis added)). "The issuance of...the order to show cause creates a ‘cause’ thereby triggering the state constitutional requirement that t he cause be resolved in ‘writing with reasons stated." (Romero, supra, 8 C al4th at 740 (quoting Cal. Const. Art. VI§ 14).* Theorder is a prelim inary determination that the petitioner has plead facts that, if proven, wo uld entitle him to relief. (See People v. Duvall (1995) 9 CalAth at 4 77). Thus, issuance of an order to show cause anticipates additional factu al ® Petitioner has all the rights that attach to the creation of a cause . Presumably, although this Court has not issued an express authori ty, petitioner's rights then include the powerto obtain documents vi a subpoena duces tecum and the rights to discovery. Moreover, petitioner' s rights to discovery should be broaderthanthat provided for capital habe as petitioners under Cal. Penal Code § 1054.9. Petitioner has accord ingly filed a confidential motion for ancillary funding with this traverse. Ba sed on his investigation, petitioner will move for discovery and seek subpoe nas when, where, and if necessary, then will supplement his traverse accord ingly. 43 developmentin the interplay,” and grants the petitioner the opportunity to present additional evidence in support of the truth of the allegations in the petition. (/d. at 480; see also Clark, 5 Cal.4th at 781 n. 16; Hochberg, supra, 2 Cal.3d at 876, n. 4; Serrano, supra, 10 Cal.4th at 456; Azzarell a, supra, 207 Cal.App.3d at 1246). In Robbins, this Court found that the "specific allegationsin the traverse... Satisf[ied] petitioner's burden with regard to the Garton subclaim of Claim I." (See Robbins, supra, 18 Cal.4th at 789). In Clark, this Court held that a traverse may "allege additional facts in support ofthe claim on which an order to show cause hasissued..." (Clark, supra, 5 Cal.4th at 781 n. 16). Thus, when this Court issued an "order to show cause on procedural timeliness issues" along with factualallegations containedin the petition and informalreply, it will also "consider pertinent supplementalallegations in petitioner's traverse" so long as petitioner does not raise a new claim. (Robbins, supra, 18 Cal.4th at 789). Petitionerhas satisfied these requirements by including with this traverse declarations from his prior counsel, before this Court, and current counsel, before this Court. These declarations document that prior counsel 43 Under Penal Code section 1484,“[t]he party brought before the Court or Judge, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or exceptto the sufficiency thereof, or allege any fact to show either that his imprisonmentor detention is unlawful, or that he is entitled to his discharge." Under Rule 8.386(d)(3), “la|ny material allegation of the return not denied in the traverse is deemed admitted for purposes of the proceeding." 44 failed to identify, investigate, and develop potentially meritorious claims.” They also provethat current counsel submitted the second petition and non- repetitive claims as promptly as reasonably possible. (See generally traverse exhibits H, I, and J (Declarations of Giannini, Thomson, and Stetler)). However, respondent erroneously asserts that in order to establish that his petition was filed without substantial delay, petitioner must also present declarations from each ofhis prior counsel, including his "federal lawyers." (Return, at 28) (citing Gallego, supra, 18 Cal.4th at 837-838 and Robbins, supra, 18 Cal.4th at 779-80, 787-88, 799, and 805) (emphasis in original)). Respondentspecifically seeks declarations from petitioner's five “4 The declarations also demonstrate, with more than general terms, that current counsel, upon learning of the factual and legal existence of the non-repetitive claims, after developing a primafacie case for each claim, immediately developed andtimely submitted a petition for writ of habeas corpus. (See traverse exhibits H,J, and J (Declaration of Giannini, at 4; Declaration of Thomson,at 4; and Declaration of Stetler, at 4). Petitioner has shown whenthe information in support of each claim was obtained and that he wasnotpreviously aware ofthe information due to prior counsel's ineffectiveness. (Robbins, supra, 18 Cal.4th at 780). Moreover, the declarations establish that prior counseldid notfail to raise the claims based on "strategy," but becausehefailed to identify the factual basis for the claims and thus failed to realize that they were potentially meritorious. (See traverse exhibit L (Declaration ofNolan,at 3-4). Petitioner has thus established due diligence and competent performanceby current counsel and that prior counsel's failure to raise potentially meritorious issues that "would haveentitled petitionerto relief...reflects a standard of representation falling below that to be expected" of capital appellate and habeas counsel. (Clark, supra, 5 Cal.4th at 774). (See traverse exhibit M (Declaration of Van Winkle, at 5-6). 45 prior federal counsel. (Return, at 29). Nothing in respondent's citations to this Court's case law discusses the need for declarations from prior federal counsel. Moreover,if the state is asserting as a defense to petitioner's assertions that prior federal counsel unreasonably failed to timely file a successivepetition, respondent should have submitted prior federal counsels’ declarations as part of its return. Petitioner has made the showing necessary to controvert the return and resolve this Court's questions by presenting declarations from his prior and current counsel before this Court. (See generally traverse exhibits H,I, J, and L (Declarations of Giannini, Thomson,Stetler, and Nolan). Nothing in respondent's cite to Gallego, supra 18 Cal.4th at 837, indicates that this Court requires petitioner to file declarations from "federal lawyers." Likewise nothing in respondent's four cites to Robbins, supra, 18 Cal.4th at 779-80, 787-88, 799, and 805, compels petitionerto set forth declarations from his prior "federal lawyers." Determining whether ornotfederal counsel performed deficiently, in preparing afederal petition for writ of habeas corpus,is not at issue before this Court and not necessary to resolve the eight queries in this Court's order to show cause.*? Moreover, if needed a petitioner could demonstrate that prior federal counsel performed 45 If this remains an issue thenit should be addressed at an evidentiary or reference hearing with the taking of testimony from prior federal counsel. See 2011 California Rules of Court, Rule 8.386()(1) ("An evidentiary hearing is requiredif...the court finds there is a reasonable likelihoodthat the petitioner may beentitled to relief and the petitioner's entitlementto relief depends on the resolution of an issue of fact."). 46 ineffectively in his case.“° In light of the order to show cause issued in this case, and counsel's diligencein filing and pursuingthe potentially meritorious claims included within the secondpetition, this Court may considerthe factual allegations included within this traverse when resolving the issues presented. These aversions should be accepted on their face. (Sanders, supra, 21 Cal.4th at 714 (citing Robbins, supra, 18 Cal.4th at 770, 798-799)). Together, the 46 At this time, as to Mr. Arguimbau,petitioner is aware that in Ross v. Woodford, Case No. CV 96-2720 SVW (C.D.C.A. 1996), the District Court, in its “Order Discharging Habeas Counsel," held that: “Theinitial petition was inadequate. For the vast majority ofits seventy-six claims, instead ofproviding an independent statement of the fact in support of the claim, the petition incorporated by reference every factual allegation included in every document and every piece of evidence ever submitted by Ross or his co-defendant, Steven Champion,to the Superior Court, the California Supreme Court and the state habeas corpus referee in connection with their trials, direct appeals, and habeas corpuspetitions. The petition cited this undifferentiated mass of allegations as factual support for every one ofthe claims. It thus failed to clearly identify the factual bases for the claim. The statementof the legal theory underlying the claims was similarly obtuse." See (See traverse exhibit G (Ross v. Woodford Case No. CV 96-2720 SVW (C.D.C.A. 1996) (Doc #152, at 11-12 (November 19, 2003)). In its Conclusion, the court stated: “Habeas counsel’s apparently inadequate investigation of Ross’s claim of ineffective assistance of counsel at the guilt phase, which becameevident to this Court only upon reviewing counsel’s recent underseal filings submitted in connection with the budgeting process, is sufficient to demonstrate the poor quality of habeas counsel’s representation. This conclusion is bolstered by the unfortunate record of counsel’s work throughout this case. The Court has observed counsel’s efforts since their appointmentin 1996 andis familiar with the quality of representation provided by other capital habeasattorneys in other cases. Mr. Arguimbau has demonstrated a singular inability to navigate the difficult legal terrain of federal habeas corpus law andprocedure." /d.at 16-17. AT factualallegations in the petition, informal reply, and traverse establish that: 1) petitioner's repetitive claims are presumptively timely; 2) petitioner's non-repetitive claims were filed without substantial delay; 3) any delay in the filing of the successive petition was due to ineffective assistance of appellate and prior habeas counsel; and 4) any delay in the filing of the successive petition is justified in light of other reasons constituting good cause. 3. Petitioner's Repetitive Claims Are Timely. Petitioner denies that he has conceded untimeliness as to any repetitive or non-repetitive claim. (See return, at 25). Petitioner's reply brief on direct appeal was submitted on October 27, 1994. His first habeas petition wastimely filed on January 20, 1995. The claims were rejected on the merits in 1996 and the timeliness wasthus settled by this Court in its opinions on direct appeal andin regardsto the first petition. (See Memro, supra, 11 Cal.4th 786; and In re Memro,supra, S044437), Respondentincorrectly argues that the fifty-six (56) repetitive claims, previously raised and rejected on the merits in the appeal, can be deemed untimely now after this Court has already determined their timeliness. Respondent offers no citation for its contention that since "this Court can deny a claim on procedural grounds andalternatively on the merits in a single proceeding, it can certainly do so in successive proceedings.” (See return, at 25), This Court should reject respondent's argument for sound reasons. 48 Respondenttries to chastise petitioner’s counselfor raising his repetitive claims and arguesthatif petitioner wanted to "avo id a procedural default ruling by this Court as to any repetitive claim, they sh ould have refrained from presenting them herein." (Id.). Respondent d oes not provide case law for its argument.” To now find untimely, a claim t hat was previously adjudicated timely and is repeated for exhaustion and cumulative error purposes, would be unfair, a miscarriage ofjustice, and illogical. Respondent's position would also controvert the "look throu gh doctrine" associated with the procedural bar outlined in W altreus, supra, 62 Cal.2d at 225.48 Respondent's use of Waltreus seeks to unjustl y stack 4” Byen if this Court adopts the state’s reasoning, petitioner ha s not had prior notice of this Court's powerto rule on the merits of a claim in one appeal; and then also dismiss the claim, based on timelin ess, in another appeal. His repetitive claims thus should be exempt from di smissal due to lack of notice. 48 See informalreply, at 3 ("The corollary ofthe rule in Dix on, supra, 41 Cal.2d 756, 264 P.2d 513, is, of course, the Wa ltreusrule, 1.€., that in the absenceofstrong justification, any issue that was a ctually raised and rejected on appeal cannotbe renewedin a petition for a w rit of habeas corpus. (See Harris, supra, 5 Cal.4th at 829). In Yist v. Nun nemaker (1991) 501 U.S. 797, 805, the United States Supreme Court c oncludedthat 4 Waltreus citation is neither a ruling on the merits nor a den ial on procedural grounds.It held that, since petitioners in Califor nia are not required to go to state habeas for exhaustion purposes, 'a Walt reus denial on state habeas has nobearing ontheir ability to raise a claim i n federal court."" (Hill v. Roe (9th Cir. 2003) 321 F.3d 787 (emphasis added); se e also Yist, supra, 501 U.S.at 805; LaCrosse v. Kernan, 244F.3d 702, 705 n. 11; Calderonv. United States Dist. Court (9th Cir.1996) 96 F.3d 1126, 1131; Forrest v. Vasquez (9th Cir. 1996) 75 F.3d 562, 564 (recogni zing that Waltreus has no bearing on a petitioner’s ability to raise a cl aim in federal court). Thus, federal courts ‘look through’ a denial based on Waltreus to 49 multiple procedural bars upon claimsin order to prevent the federal courts from reaching the merits. Such adaptation would work a particular injustic e in caseslike petitioner’s, where the repetitive claims have been pled based on orders from a federal court to exhaust all unexhausted claims including claims of cumulative error. (See Reno v. Calderon, 2.96-cv-02768-CBM (USDC Doc #119)). These claims have been reasserted for several additional reasons. First, this Court may reconsiderits prior denial of the claims based onits discretionary power of review. Second, this Court should re-examineits prior denial of the claims in the context of the facts and claims alleged in the secondpetition, which is more complete and detailed than the prior appellate and habeas pleadingsfiled in this Court. Third, it is necessary to present the claims of cumulative error to this Court. Fourth, it is necessary to exhaustall claims in the federal petition including claims of cumulative error. Fifth, so that this Court may better assess the prejudice stemming from the multitude of errors infecting petitioner's capital proceedings. Sixth, to provide context for this Court's determination as to whether prior appellate and habeas counsel performed ineffectively by failing to raise all potentially meritorious claims included within the secondpetition. Finally , previousstate court decisions. (See Yist, supra, 501 U.S. at 805-06). Wer e respondentcorrect, any finding under Jn re Waltreus would necessarily result in a finding of untimeliness as well. Certainly, any time a claim wa s brought in an appeal and waslater brought in a second habeaspetition,it would not be presumptively timely. There is no hint, however, in Waltreu s or its progeny that it encompassesa timeliness ruling as well.”). 50 thisCourt should reconsiderits prior denial of seventeen (17) of the repetitive claims since they have been further developed with additional case law and facts following their original submission to this Court.” In sum, for current counsel to perform competently and effectively in petitioner's case it was necessary to include the fifty-six (56) repetitive claimsin the second petition. This Court may reconsiderits prior denial of the claims basedonits inherent powers and material factual and legal changes in seventeen(17) of the claims. Alternatively, even if this Court finds that the claims lack merit, it should still consider the claims for context when determining whether prior appellate and habeas counsel performedineffectively in petitioner's case and whetherpetitioner has stated ‘a claim for relief based on cumulative error. (See generally traverse exhibit M (Declaration of Van Winkle, at 4-8). Based onall these reasons,the fifty-six (56) repetitive claims presented in the secondpetition should be found to have been timely presented. They are thus exempt from timeliness analysis here.” Additionally, based on the strength of the other claims presented in the Claims 8, 9, 15, 20, 27, 28, 30, 31, 33, 40, 41, 56, 63, 73, 81, 112, and 121. 50 Ag discussed herein, since this Court has denied these claims on the merits, and therefore previously foundthat they were presented in a timely fashion, further analysis of the timeliness of these claimsis not provided. Instead, they will be analyzed under the rubric of the Waltreus bar - and in regard to whether they were brought on direct appealorin habeas. - 51 second petition, this Court should reconsiderits prior denial of these claims. 4, Petitioner's Non-Repetitive Claims Have Been Filed Without Substantial Delay. In May 2004,less than seventeen (17) monthsafter their appointmentin this case, petitioner's counselfiled the secondpetition. Counsel identified, developed, and presentedthe claims in the second petition as promptly as reasonably possible. Thus,the eighty-seven (87) non-repetitive claims not included in the first petition, but included in the second petition, have also been timelyfiled. While the filing does not come within the range set by this Court’s policies for presumptive timeliness, the petition is nevertheless timely because it was filed without substantial delay after counsel learned ofprior counsel's ineffectiveness in failing to identify, investigate, develop, and present the potentially meritorious claims. (See Clark, supra, 5 CaJ.4th at 780; and Sanders, supra, 21 Cal.4th at 719). Indeed, “the complexity of capital cases and the resultant difficulty that appellate counsel appointed long after trial and conviction may have in determining if a basis for habeas corpus may exist is recognizedin the Policies." (Clark, supra, 5 Cal.4th at 784). a. Petitioner's Burden to Show Absence of Substantial Delay. Petitioner recognizes that he bears the burden of showingthe absenceofsubstantial delay in thefiling of his secondpetition. (Robbins, supra, 18 Cal.4th at 780). However, contrary to respondent's assertions, petitioner's showingis not subject to a "substantial" burden test. (See 52 return, at 10). Instead,petitioner is only required to make a primafacie showing that his claims were timely filed or meet an exception to the timeliness bar. (See generally, Clark, supra, 5 Cal.4th at 775). Petitioner accomplishedthat in the petition and the informalreply and reenforces those allegations in this traverse. (See /d. at 781 n. 16; see generally traverse exhibits H, I, J, K, L, and M (Declarations of Giannini, Thomson, Stetler, Reno, Nolan, and Van Winkle)). Policies standard 1-1.2 governs whetherpetitioner has demonstrated the absence of substantial delay. The absence of substantial delay may be shownbyalleging "specific[] facts showing the petition was filed within a reasonabletimeafter petitioner or counsel became aware of information indicating a factual basis for the claim and became aware,or should have become aware, ofthe legal basis for the claim." (Clark, supra, 5 Cal.4th at 784-85). Thus, "[s]ubstantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known,ofthe information offered in support of the claim and the legal basis for the claim." (Robbins, supra, 18 Cal.4th at 780). “That time may be as early as the date of the conviction." (Clark, supra, 5 Cal.4th. at 765 n. 5 (emphasis added)). “Only ifand whenthepetitioner obtains enough information to support what may be a primafacie claim ... does the time for promptly filing the claim commence." (Gallego, supra, 18 Cal.4th at 834 (emphasis added)). Timeis not running againsta petitioner who has an “undeveloped and unsubstantiated claim" because “he or she has no primafacie case to present.” (/d. at 835 (emphasis added)).°! In the alternative, "[w]hen the factual basis for a claim is already known,the claim must be presented promptly unless facts knownto counsel suggest the existence of other potentially meritorious claims which cannot be stated without additional investigation." (Clark, supra, 5 Cal.4th at 784). "When a petitioner or counsel knowsor should know only oftriggering facts - i.e., facts sufficient to warrant further investigation, but insufficient to state aprimafacie caseforrelief - the potential claim should be the subject of further investigation either to confirm orto discount the potential claim." (Gallego, supra, 18 Cal.4th at 833 (emphasis added)); A petitioner whohasonly information that does not rise to the level of a prima facie claim is not required or expected to file a petition embodying such a claim, it cannot be said that such a petitioner reasonably should have filed a petition raising the undeveloped claim at that earlier time. (Gallego, supra, 18 Cal.4th at 834). Thus, the absence of substantial delay can be shownin two ways. First, petitioner may demonstrate that he did not have knowledge ofa basis of a claim and upon gaining knowledge he presented a petition, including the claim, within a reasonable amount of time. Second, andalternatively, petitioner may show an absence of substantial delay by demonstrating that the petition was filed as promptly as reasonably possible after a primafacie case for all claims and a primafacie 51 Cf. Clark, supra, 5 Cal.4th at 781 (“petitioner whois aware of facts adequate to state a prima facie case for habeas corpusrelief should include the claim based on thosefacts in the petition even if the claim is not fully ‘developed"). 54 case for excusal of procedural default laws had been developed. Petition er did not previously know ofthe non-repetitive claims. He hasfiled the second petition within a reasonable amountof time after the development o f the non-repetitive claims, and only after developingaprimafacie case for each of the non-repetitive claims and excusal of procedural default laws. b. Petitioner Has Shown An Absence of Substantial Delay In the Filing of His Second Petition. On December 18, 2001, present counsel were appointed to represent petitioner in his federal habeas corpus action before the District Court for the Central District of California. Counselfiled a request to be appointed to represent Mr. Reno before this Court on September 23, 2002. This Court granted the motion on October16, 2002. As quickly as reasonably possible, and to avoid the piecemeal representation of claims, petitioner preparedandfiled the secondpetition within seventeen months of being appointed by this Court. Petitioner's counsel made clear that they included all possibly meritorious and "known claims of constitutional error related to his trial, convictions, sentenc e and imprisonmentfor the sake of clear presentation and so this Court can assess the cumulative effect and determine that a miscarriage ofjustice occurred. This includes claims that have been previously presented." (Second petition, at 23 (emphasis added)). Thus,petitioner has carried his burden of "establishing with specificity when the information offered in support of [his petition] was obtained andthat the information was neither known nor 55 reasonably should have been knownatan earlier time." (Contra return, at 26). Moreover, based on the information provided in this case, it is not impossibleto identify "[when] the factual and legal bases for his claims" arose. (Contra Id.), None ofthe non-repetitive claims raised forthe first time in the secondpetition were raised an unreasonable "time after [petitioner] became awareof[] the claim []." To the extent any claims include "facts that were knownatthe timeofthetrial" (id.), the untimely presentation of these claimsare justified by appellate and prior habeas counsel's ineffectiveness. All the claims in the second petition were filed as promptly as possible following the development of a primafacie basis for each claim andaprimafacie case for excusal of applicable procedural bars. (See traverse exhibit H (Declaration of Giannini, at 4 and 10-11). Respondenterroneously argues that manyofthe non-repetitive grounds asserted in petitioner's petition "are but restatements or reformulations of arguments made and rejected on appealin the 1995 habeaspetition." (Jd. at 23). Respondenterrs in saying that petitioner has failed to show that grounds not previously raised on appeal or habeas proceedings "could not have been asserted in the prior petition ... [or] in conjunction with the appeal." (/d.). Petitioner's claims could not have been previously raised dueto the ineffective assistance of appellate and prior habeas counsel. Petitioner denies that "every single one of the claims [raised in the second petition] are based primarily on facts known or 56 discoverable at the time oftrial and includedin the appellate record.” (Return, at 24). Respondenterrs in the assumption that any claim with a citation to the record provesthat petitioner knew aboutthe basis for the claim and failed to raise it earlier without substantial delay. (See return,at 34), Respondent's argument for default actually proves that prior counsel performed ineffectively in failing to identify, investigate, develop, file, and competently present potentially meritorious claims that were based on "facts knownor discoverable at the timeoftrial and included in the appellate record." (Return, at 24). A fact admitted to by appellate and prior habeas counsel. (See traverse exhibit L (Declaration ofNolan, at 4). Respondent fails to distinguish between the non-repetitive appellate versus non- repetitive habeas claims. Respondentis utterly silent as to the evidence, not based on facts in the record, raised in the secondpetition to corroborate the non-repetitive habeas claims. A non-repetitive appellate claim should have been brought on appeal in that it is based primarily on facts in the recordandis a claim that would typically be addressed on direct appeal where that issue was raisedattrial. A non-repetitive habeas claim should have been brought in a habeas petition in that it is based primarily on facts from outside the trial record and is based on claimstypically brought in habeaspetitions. What determines whether a claim is a non-repetitive habeas versus appellate claim is whether: 1) the claim includesfacts fromoutside the record; and 2) the claim is premised on a legal theory that is typically raised in appeal or on an issue that wasnotpart of the record at petitioner's trial. While both types of non-repetitive claims may include citationsto the record, far from provingthat all are appellate in nature, the record citation proves that the errors alleged had a material andrelative effect on petitioner's trial. By arguingthat all the claims have been delayed, since they can be foundin th e appellate record, respondentis attempting to divert this Court's timeliness analysis, which must evaluate when either petitioner or his counsel learned of and developedthe factual and legalbasis for a non-repetitive claim. Respondentalso errs in failing to acknowledgethe exhibits included with the secondpetition that support the non-repetitive claimsoferror. (See secondpetition, exhibits A - DD). These thirty (30) exhibits contain material facts not adducedattrial, which corroborate the legal theories and factual allegations raised in the non-repetitive habeas claims and included in the second petition. These claims could not have been presented until counsel identified the legal issues and the factual basis for the claim based on evidence not reflected in the appellate record. The fact that counsel located thirty (30) exhibits not previously identified and submitted by appellate and prior habeas counsel further demonstrates prior counsel’s ineffective assistance. 58 c. Counsels' Declarations Show That the Non- Repetitive Claims In the Second Petition Have Been Timely Presented. Petitioner denies that he has “utterly fail[ed] to establish that the information previously was unknown byany ofhis previous attorneys or by petitioner himself and that it could not have been discovered by them in the exercise of due diligence." (Return, at 28 (emphasis omitted)). Petitioner has supplied more than "bare allegations" that prior counsel were "unaware of certain, predicate triggering facts or potentially meritorious claims...." (Contra Jd.). By this traverse, and attached declarations, petitioner has supplied "a detailed, particularized examination of when those facts reasonably could have been ascertained [] through the exercise of due diligence and [has] show[n] that they could not have been discovered any earlier.” (Id. (citation omitted)). Thus, the pleadings are not fatally silent as to when prior counsel andpetitioner learned oftriggering or predicate facts for each of the claims. (Contra Jd. ). First, seventeen (17) of petitioner's claims rest upon exhibits not previously found by appellate and prior habeas counsel.>* (See traverse 2 See secondpetition, at 88 (Claim 15 (citing secondpetition exhibits B-K)); 104 (Claim 19 (citing second petition exhibits G and H)); 117 (Claim 20 (citing secondpetition exhibits C and D); 251 (Claim 68 (citing second petition exhibit CC)); 256 (Claim 71 (citing second petition exhibits F-K)); 309 (Claim 90(citing second petition exhibit K)); 313 (Claim 91 (citing second petition exhibits D and F)); 331 (Claim 98 (citing second petition exhibit BB)); 361 (Claim 102 (citing secondpetition exhibit P)); 371 (Claim 108 (citing secondpetition exhibits M - X)); 417 (Claim 109 (citing secondpetition exhibits S - AA)); 371 (Claim 112 (citing second petition exhibit Q)); 417 (Claim 118 (citing second petition exhibit CC)); 59 exhibit H (Declaration of Giannini, at 11)). The exhibits provide material evidenceofpetitioner's incompetence, mental health problems, andlife story, all evidencecritical to a reliable determination of his guilt and the appropriate sentence. Petitioner agrees that most, if notall, of the facts underlying the non- repetitive claims were available to prior counsel after thorough review of the record or reasonable investigation. (Return, at 29). Respondentfails to note that, if true, prior counsel performed ineffectively by failing to develop potentially meritorious claims despite their possession oftriggering facts to support the claims. Since appointment, petitioner's counsel havediligently pursued investigation in anticipation of supplementing and amendinghis petition,? demonstrating that counsel presented the petition, and claims, at a time when he could make a primafacie caseas to all allegationsof error and for excusal of procedural default bars. In fact, counsel indicated that he withheld some claimsthat had not been fully developed in light oftheir request for "further investigation [] in connection with the present petition for writ of habeas corpus." (Secondpetition, at 24). Likewise, counsel has 422 (Claim 119 (citing second petition exhibit CC)); Claim 120 (citing second petition exhibit AA); 430 (Claim 121 (citing secondpetition exhibit G, H, and M)); and449 (Claim 125 (citing secondpetition exhibit DD)). 33 See secondpetition, at 21 ("After petitioner has been afforded discovery and the disclosure of material evidence by the prosecution, the use of this Court’s subpoena power,[ ] fund[ing] and an opportunity to investigate fully, counsel requests an opportunity to supplement or amend this petition."). 60 indicated that upon completing investigation of the claims in April 2003 (see traverse exhibit H (Declaration of Giannini, at 10), the claims were immediately submitted following their drafting and the completion of a primafacie case for each claim. (See traverse exhibit I (Declaration of Thomson,at 3-4). Importantly, prior counsel hasindicated that he was not previously aware ofthe legal or factual basis for any of the non-repetitive claims. (See traverse exhibit L (Declaration of Nolan, at 3-4). Asa result, he failed to conductadequate investigation to determine whether the claims possessed potential merit. (/d.). Upon review of the claims, prior counsel has admitted that seventy-one (71) claims are "potentially meritorious," should have been previously raised, and would have been submitted in the 1993 openingbrief or the 1995 petition had counsel been aware of their factual basis. (Id.). Moreover, expert attorney Wesley Van Winkle opinesthat all one-hundred-forty-three (143) claims should have beenfiled by petitioner's current counsel. (See traverse exhibit M (Declaration of Van Winkle, at 8- 9). Accordingly,petitioner has alleged more than "general terms" and "seneric allegations" showing that the claims were raised without substantial delay. (Contra return, at 27 (emphasis omitted) (citation omitted)), and has done more than "‘incorporate by reference’all the allegations set forth in each of the 143 claims and merely proffer[ed] general, across-the-board assertions of lack of delay that are wholly vague 61 and conclusionary." (Contra Jd. at 30-31 (citation omitted)). Petitioner previously allegedthat his claims and the secondpetition were "filed as soon as practicable after all of the facts allegedas grounds herein became known to undersigned counsel, and counsel could reasonably have discovered the facts." (Second petition, at 13). "As stated above, counsel only learned of these new claimsas he wasin the process of preparing Mr. Reno’s federal petition for a writ of habeas corpus." (Second petition, at 19). From December 2001 to April 2003, counseldiligently identified, investigated, and developedeach of the non-repetitive claims. (See traverse exhibit H (Declaration of Giannini, at 3-8). Petitioner was informed of the legal andfactual basis of these claims, for the first time, after April 2003. (See traverse exhibit K (Declaration of Reno,at 1-2). Aprimafacie case for cach claim, including cumulative error claims, was not developed until the petition was submitted in May 2004. (See traverse exhibits | (Declaration of Thomson,at 3-4). Further, this Court’s findings in Gallego are distinguishable from this case. (See return, at 27). Contrary to Gallego, counsel here has demonstrated, with specificity, when they and petitioner Reno became aware of the basis for the non-repetitive claims. (Contra Gallego, supra, 18 Cal.4th at 838; but see Robbins, supra, 18 Cal.4th at 789). Unlike counsel in Gallego, immediately after appointment, and up until the presentation of claimsto this Coutt, petitioner's counsel were conducting an ongoing investigation of petitioner's case and perfecting claims of error. (Contra Gallego, supra, 18 Cal.4th at 838 n. 13). Likewise, contrary to counsel in Gallego, petitioner's counsel developed a primafacie case for the final claimsin the petition immediately beforethe filing of the second petition. (Contra Jd.). (See traverse exhibit I (Declaration of Thomson,at 3-4). This case is more comparable to Robbins and Sanders than Gallego. Petitioner’s counsel, like counsel in Robbins, have "not only [] alleged, with specificity, facts showing the timeliness of [his claims], but also has referred to attached declaration{s] that support the allegations and place them in context." (Robbins, supra, 18 Cal.4th at 795 n.16). (See generally traverse exhibits H, I, J, K, L, and M (Declarations of Giannini, Thomson, Stetler, Reno, Nolan, and Van Winkle). Moreover, petitioner's counsel has asserted that he withheld the presentation ofclaims that "did notstate a primafacie case," that all the claims were "perfected and then delayedfor good cause pending his completion of an ongoing investigation into [] other matters," and that he withheld all claims as componentparts of the cumulative error claims. (Contra Robbins, supra, 18 Cal.4th at 807 n. 29; see generally traverse exhibits I (Declaration of Thomson,at 3-4; Declaration of Stetler, at 3-4). Further, respondent's timeliness analysis and interpretation of Robbins and Gallego ignores the fact that this Court does not determine whethera claim is timely solely based on the timethat the petition was filed. (See return, at 27). Instead, this Court long ago opted to determine 63 timeliness, and whether a substantial delayhas occurred, on a case by case basis. (Clark, supra, 5 Cal.4th at 765 (citing Swain, supra, 34 Cal.2d at 302)). Thus, contrary to respondent's assertions, petitioner has established an absenceofsubstantial delay as to all claims included within the second petition. (Contra return, at 25). This includes all of the non-repetitive claims which were raised as promptly as reasonably possible by petitioner's current counsel, after developing aprimafacie case for each claim and concluding investigation into relevant matters. 5. Alternatively, Petitioner Has Alleged, with Particularity, Facts Constituting Good Cause and Justifying the Delayed Filing of His Petition. If this Court finds that petitioner has filed his petition with substantial delay, then petitioner alternatively asserts that he had good cause and wasjustified in filing the second petition in May 2004. At petitioner’s capitaltrial, his counsel ineffectively failed to present evidence of alternate suspects; evidence ofpetitioner’s actual innocence, evidenceofpetitioner’s reduced culpability; evidence of petitioner's mental health problems; substantial evidence in mitigation; and at least eleven discoverable witnesses in mitigation. During petitioner’s appeals,his appellate and prior habeas counsel failed to identify record-based and extrinsic triggering facts; failed to adequately investigate potentially. meritorious claims oferror; and failed to present many other meritorious claims that underminepetitioner’s capital convictions and sentence. (See traverse exhibit L (Declaration of Nolan, at 3-4). In doing so, appellate and 64 prior habeas counselfailed petitioner, performed incompetently and rendered ineffective assistance of counsel. (Sanders, supra, 21 Cal.4th at 719). Here, for the first time, petitioner has been granted the benefit of effective capital counsel who,after conducting “investigation into specific facts known to counsel which could reasonablylead to a potentially meritorious habeas corpus claim..." have competently presented to this Court “all potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780, 784 (citations omitted; and emphasis added)).* (See traverse exhibit M (Declaration ofVan Winkle, at 8-9). Respondent incorrectly argues that petitioner has not "sufficiently explicated his failure to include them in his 54 Petitioner’s counsel’s submission of all one-hundred-forty-three (143) claims, whether repetitive or non-repetitive,is supported by the Supreme Court Policies language. All appellate and habeas counsel are required to “investigate factual and legal groundsforthefiling of a petition for a writ of habeas corpus... [A|lI petitions for writs of habeas corpus should be filed without substantial delay... [in] all petitions for writs of habeas corpusarising from judgments of death, whether the appeals therefrom are pending orpreviously resolved, are governed bythese standards." (Supreme Ct. Policies, supra, policy 3, former std. 1-1, see now std. 1-1, 2d par.) (Italics added). From this language, this Court has determinedthatit “is clear" that “appellate counsel [are] on notice that [they are] required to investigate the groundsfor a petition for a writ ofhabeas corpus and,if potentially meritorious grounds were uncovered, to prepare and file a petition without substantial delay." (Sanders, supra, 21 Cal.4th at 710 (citing Robbins, supra, 18 Cal.4th at 808)). Thus, whencurrent counsel discoveredthatthere existed a primafacie basis for one-hundred-forty-three (143) claimsoferror in petitioner’s case, they were required to submit all one-hundred-forty-three (143) claims in a single petition. (See traverse exhibit M (Declaration of Van Winkle, at 3 and 8-9). 65 priorstate petition." (Return, at 32).Petitioner has demonstrated good cause and aprimafacie case for excusal ofthe timeliness barto all the non- repetitive claims.°° Petitioner's appellate and prior habeas counsel provided ineffective assistance in notraising all “potentially meritorious claims" in the second petition. (Contra Id., at 34; see generally traverse exhibit H, L, and M (Declaration of Giannini, Nolan, and Van Winkle). 55 Respondentarguesthat petitioner has not "adequately explained his failure to includeall of his present claimsin his prior federal petition (filed by other attorneys)...." (Return, at 31-32). Petitioner is not required to demonstrate the ineffective assistance of his prior federal attorneys here, but if he was so required to do so at an evidentiary hearing, petitioner could demonstrate that his prior federal attorneys, despite their possession of triggering facts, also performed ineffectively by failing to identify, investigate, and develop the potentially meritorious claims not included within his first federal petition. °6 Petitioner has not set out the justification for the "delay[ed]" presentation ofthe repetitive claims in the secondpetition because these claims have previously been foundtimely. (See Memro, supra, 11 Cal.4th at 786; and In re Memro, S044437). Collectively, however, these claims composepart of the cumulative error claims(see second petition 517-19 (Claims 140-143)), and therefore also qualify as a non-repetitive claim. If this Court finds that the repetitive claims were not timely presented, then petitioner asserts that they have been filed without substantial delay, or that any delay in their presentation is justified due to the ineffective assistance of prior capital counselin failing to present the claims to this Court in combination with the non-repetitive meritorious claims presented in the second petition. 66 a. Petitioner Has Carried His Burden to Show Good Cause And HasJustified The Presentation of His Claims After Substantial Delay. This Court requires petitioners to "explain and justify any sub stantial delay in presenting a claim." (Clark, supra, 5 Cal.4th at 783 ( quoting Swain, supra, 34 Cal.2d at 304). This requirement predated this Court’s policies, which have imposedthe presumption of timeliness and absence of substantial delay standards. (See Clark, supra, 5 Cal.4th at 784). In this regard, this Court’s case law regarding good causefor the delayed presentation of habeaspetitions is more developed than this Court’s case law underthe policies regarding the absence of substantial de lay. (See Swain, supra, 34 Cal.2d at 302) (cases cited therein)). There is no single justification that will constitute good cause for substantial delay. Indeed, this Court has recognized that “[w]e cannot anticipate what claims ofthis nature might be made notwiths tandingthe exacting nature of the appeal processin a capital case." (Cla rk, supra, 5 Cal.4th at 798 n. 32). Instead, this Court has opted to review eachcase for good cause and has made relief dependent upon specific and particularized allegations in the moving party's pleadings, (see Jn re Shipp (1965) 62 Cal.2d 547, 553) - allegations that should preferably be embo died in declarations from counsel. (See Robbins, supra, 18 Cal .4th at 795 n. 16). Thus, although a petitioner has no way of knowing whatfact s will justify the delayed filing of a particular petition or claim therein th rough specific and particularized allegations, he may demonstrate good ca use for the delay. 67 Good cause for substantial delay may be established if, for example,the petitioner can demonstrate that because he or she was conducting an ongoing investigation into at least one potentially meritoriousclaim,the petitioner delayed presentation of one or more other claims in order to avoid piecemeal presentation of claims... . (Robbins, supra, 18 Cal.4th at 780 (emphasis omitted)). Respondent does acknowledgethat this Court will consider "whether the facts on which the claim is based,although only recently discovered could and should have beendiscoveredearlier," before refusing to consider the merits of a substantially delayed claim. (See Clark, supra, 5 Cal.4th at 775). But, respondenterrs in trying to limit this Court's good cause analysis to just one or two factual scenarios. (See return, at 16-17). This Court’s case law has outlined several scenarios that may constitute good cause and justify the untimely presentation of a habeas petition, including when: 1. Atthe timethe priorpetition was filed "the factual basis for a claim was unknownto the petitioner and he hadnoreasonto believethat the claim might be made." (Clark, supra, 5 Cal.4th at 775); 2. At the timethepriorpetition wasfiled, petitioner was "unable to present the claim...if asserted as promptly as reasonably possible." (Clark, supra, 5 Cal.4th at 775); 3. The new claim is based on "a change in the law whichis retroactively applicable to final judgements...promptly asserted and if application of the former rule is shown to have been prejudicial." (Clark, supra, 5 Cal.4th at 775); 68 4, The delay is attributable to "inadequate presentation of an issue or omission of any issue [by prior] incompetence of counsel." (Clark, supra, 5 Cal.4th at 780); 5. Thepetitioner "reasonably failed to discoverearlier the information offered in support of that claim because heor she timely requested but was denied fundingto investigate that claim.” (Gallego, supra, 18 Cal.Ath at 834-35); 6. The "petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts. supporting those claims could not with due diligence have been confirmed at an earlier time." (Clark, supra, 5 Cal.4th at 781); and 7. The delay is due to a petitioner's inability to make use of legal information due to his education, when, on learning of the law, the prisoner immediately sought the assistance of counsel. (Clark, supra, 5 Cal.4th at 786 (citing Jn re Saunders (1970) 2 Cal.3d 1033, 1040; and Jn re Perez (1966) 65 Cal.2d 224, 228). Petitioner has demonstrated good causejustifying the delayed presentation ofall the claims included within his secondpetition. Prior counsel’s ineffective assistance is but just one of the impediments external to petitioner that have delayed the presentation of his claims to this Court. In sum, respondenthas failed to substantiate its assertion that petitioner has abused the writ and presented untimely claims withoutsufficient justifications. (Contra return, at 16-17). 69 b. TheSerial Ineffective Assistance of Prior Trial, Appellate, and Habeas Counsel Justifies the Delayed Filing of Petitioner’s Petition. Petitioner stands by his assertion that "he cannotbe held responsible for the multiple counsel" who haveineffectually represented himin his capital appeals and writs. (See return, at 29 (citing informalreply, at 8)).77 Far from attempting to capitalize from a "tag-team artifice of chain substitutions of attorneys,” (return, at 29), petitioner has received serial ineffective assistance, which has adverselyaffected the presentation ofhis claims. Moreover, "[rlespondent's arguments are premised on an erroneous understanding of our habeas corpus procedural rules and the scope of counsel's dutfies] when conduct[ing] a habeas corpus investigation in a capital case." (Robbins, supra, 18 Cal.4th at 791). Respondent acknowledgesthat this Court has previously found that ineffective assistance of appellate or habeas counselconstitutes good cause 57 Petitioner has timely submitted his claimsof ineffective assistance of appellate and prior habeas counsel. (Contra return,at 30). Petitionerhas previously asserted that his right to effective assistance of counsel was violated by the materially deficient performance ofhis prior habeas counsel. (See secondpetition, at 21 ("To the extent that the error or deficiency alleged was dueto trial counsels’ failure to investigate and/or litigate in a reasonably effective manner on petitioner's behalf, petitioner was deprived of his federal and state constitutional rights to the effective assistance of counsel. To the extent that meritorious claims were notraised in petitioner's appeal andinitial habeaspetition, petitioner was deprived of his federal and state constitutional rights to effective assistance of appellate and habeas counsel.")). 70 and justifies the delayed presentation of a habeaspetition. (See return, at 30 (citing Sanders, supra, 5 Cal.4th at 719)). This Court has previously found instances ofserial ineffective assistance of counsel "instructive"as to the facts likely to justify substantial delay. (See Clark, supra, 5 Cal.4th at 792 (citing and discussing Com. v. Watlington (1980) 491 Pa. 241, 245 (“Since appellant has alleged the ineffectiveness ofall prior counsel for failing to raise the issues containedin the instant petition, the P.C.H.A. Court's ruling that said issues had been waived was erroneous."). Petitioner received ineffective assistance of counsel, and can justify the delayed presentation of his claims accordingly. (See traverse exhibits L and M (Declaration of Nolan, at 3-4; and Declaration of Van Winkle, at 5-7). Present counselare the first counselto file a state petition containing “all potentially meritorious claims." (Clark, supra, 5 Cal.4th at 778). Petitioner has demonstrated that prior counsel performed deficiently and failed to include claims which would haveentitled him to relief. (See e.g., Id. at 780). All the claims included in the second petition may be considered by this Court based on prior counsel’s failure to identity triggering facts,-reasonably investigate claims oferror, and competently present “all the potentially meritorious claims" in petitioner's case, both individually and cumulatively, on direct appealorin thefirst petition. Moreover, the claims may be reviewed because they would "have entitled the petitioner to relief hadit been raised and adequately presented in the 71 initial petition.” (Id.).* IL. Habeas Counsel’s Duties in a Capital Case. This Court has found that its prior case law, Internal Operating Practices, Supreme Court Policies, and Cal. Gov. Code § 68662, grant capital defendants the right to effective assistance of habeas counsel. (See Sanders, supra, 2\ Cal.4th at 719). In this regard, respondent recognizes that “it is true ‘that petitioner should not be penalized for prior counsel's ineffective assistance and that their failings’ should not be held against him.” (See return, at 30 (quoting informalreply, at 29-30)). However, respondentfails to note the many duties, as outlined in this Court’s case law, shouldered by capital counsel when competently conducting appellate 58 To prove that appellate and prior habeas counsel performed deficiently, petitioner recognizes that he must "allege with specificity the facts underlying the claim that the inadequate presentation of an issue or omission of any issue reflects incompetence of counsel, i.e., that the issue is one which would haveentitled the petitioner to relief had it been raised and adequately presented in theinitial petition, and that counsel's failure to do so reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants." (Clark, supra, 5 Cal.4th at 780). 59 "In sum, although the federal Constitution does not require this state to appoint counselto represent indigent death row prisoners in state habeascorpus proceedings, (I) Jn re Anderson (1968) 69 Cal.2d 613, (it) this court's own Internal Operating Practices,(iii) policy 3 of the Supreme Court Policies, and now (iv) Government Code section 68662 all require such appointment." (See Sanders, supra, 21 Cal.4that 719). 72 and habeascorpuslitigation.” (See traverse exhibits E and F (Supreme Court Policies Regarding Cases Arising from Judgments of Death; a nd California Supreme Court Memorandum - Appendix of Appointed Counsel's Duties). As summarized in the case, these duties inclu de, but are not limited to: 1. The diligent and thorough review oftrial counsel's files, the trial record, the appellate briefs, and any other matter relative to their client’s capital trial and appeals. (Sanders, supra, 21 Cal.4th at 708); 2. The reasoned conclusion that there are, or are not, triggering facts that would lead to potentially meritorious appellate claims. (Sander s, supra, 2\ Cal.4th at 708); 3. Reasonable investigation into claims of error premised on triggering facts identified in the appellate record. (Sanders, supra, 21 Cal.4th at 708); 4. The duty to presentall potentially meritorious appellate claims known to counsel. (Sanders, supra, 21 Cal.4th at 707); 5. The reasoned conclusionthat there are, or are not, triggering facts that wouldlead to potentially meritorious habeas claims. (Sanders, supra, 21 Cal.Ath at 708); © See generally, See also Supreme Court of California, Memorandum: Appendix ofAppointed Counsel's Duties, available at: www.courtinfo.ca.gov/courts/supreme/documents/applica9b.pdf (last visited February 4, 2011). (Traverse exhibit F (California Supreme Court Memorandum - Appendix of Appointed Counsel's Duties). 73 6. Reasonable investigation into habeas claims premised on triggering facts outside the appellate record. (Sanders, supra, 21 Cal.4th at 708); 7. The duty to timely presentall potentially meritorious habeas claims known to counsel. (Sanders, supra, 21 Cal.4th at 707); 8. The duty to adequately presentall potentially meritorious claims known to counsel. (Clark, supra, 5 Cal.4th at 775); 9, The duty to recognize controlling law and changes in law, which could lead to a “potentially meritorious claim." (Sanders, supra, 21 Cal.4th at 707); and 10. The duty not to waste resources and conduct “fishing expedition[]" investigations into claims not premised on triggering facts. (Clark, supra, 5 Cal.4th at 784). The heightened competency needed to provide effective counselis recognized in this Court’s appointmentpolicies. (See 2011 California. Rules of Court, rule 8.605(e)).°' Likewise, this Court has recognized that: 61 “An attorney appointed as lead or associate counsel to represent a personin death penalty related habeas corpus proceedings must have at least the following qualifications and experience: [{]| (1) Active practice of law in California for at least four years. [{] (2) Either: [] (A) Service as counsel of record for a defendant in five completed felony appeals or writ proceedings, including one murdercase, and service as counsel of record for a defendantin three jury trials or three habeas corpus proceedings involvingserious felonies; or [{] (B) Service as counsel of record for a defendant in five completed felony appeals or writ proceedings and service as supervised counsel in two death penalty related habeas corpus proceedings in which the petition has beenfiled.... [{] (3) Familiarity with 74 Quite few in number are the attoreys who meet this court's standards for representation and are willing to represent capital inmates in habeas corpus proceedings. The reasons are these: First, work on a capital habeas petition demands a unique combination ofskills. The tasks ofinvestigating potential claims and interviewing potential witnesses require the skills of a trial attorney, but the task ofwriting the petition, supported by points and authorities, requires the skills ofan appellate attorney. Many criminal law practitioners possess one ofthese skills, but few have both. (Morgan, supra, 50 Cal.4th at 938). The problem is further exacerbated by the odd fact that, despite the extreme demandandlimited supply of qualified capital counsel in California, such attorneys "are compensated well below marketrates." (Judge Arthur L. Alarcon, Remediesfor California's Death Row Deadlock (2007) 80S. Cal. L. Rev. 697, 716). As a result, this Court "has encountered great difficulty in finding counsel who are willing to accept appointmentto represent such inmates." (Ud.). As a general matter then, to perform effectively in a capital case habeas counsel must fulfill ten (10) separate duties, possess necessary the practices and proceduresofthe California Supreme Court and the federal courts in death penalty related habeas corpus proceedings.[{] (4) Within three years before appointment, completion of at least nine hours of Supreme Court approved appellate criminal defense or habeas corpus defense training, continuing education, or course of study, at least six hours of which address death penalty habeas corpus proceedings.... [{{] (5) Proficiency in issue identification, research, analysis, writing, investigation, and advocacy....” (Cal. Rules of Court, rule 8.605(e).) This Court may appoint an attorney who doesnot meet certain of these requirements if we find that the attorney has other equivalent experience andthe attorney can consult with an attorney designatedby the court. (2011 Cal. Rules of Court, rule 8.605(f).)” (as appearing in Morgan, supra, 50 Cal.4th at 938 n. 4), 75 qualifications, and be w illing to work without adequate compensation . This Court's rules, wh ich drastically limit t he amount of time, fu nding, and resources capital couns el may seek prior to fil ing a habeas petition, m ake matters worse. As in pe titioner's case, the resul t is often petitions that fail to conform to the rigor ous demandsfor capital habeas petitions requir ed by this Court and fail to in clude "all potentially me ritorious claims." (Cl ark, supra, 5 Cal.4th at 780) . Within this backdrop, r espondent incorrectly a rgues that prior ineffective assistance o f counsel will constitut e good cause only when the "prior counsel essential ly abandon{s| his clien t." (Return, at 20). In stead, and as respondentlater concedes, ineffective as sistance of habeas coun sel may occur when counse l ineffectively decides "which claimsto presen t and which [claims] to weed out." (Id. at 20 (citing S anders, supra, 21 Cal.4 th at 705)). While abandonm ent constituted the goo d cause that justified consideration of the mer its of the untimely clai ms in Sanders, this Cour t did not go as far as to hold that untimely claims wi ll only be justified if pr ior ee ® Respondent's test act ually goes much furthe r and would require petitioner to show:1) t hat prior counsel abando nedhis client; 2) that p rior counsel failed to condu ct any reasonable foll ow up investigation; 3) that prior counsel was awar e of known triggering facts, 4) that prior coun sel determined the non-exi stence of potentially me ritorious claims; 5) tha t prior counselcite the press o f work as cause of subs tantial delay; and 6) th at subsequent habeas coun sel eventually presents the claim to this Court. (See return, at 15). Respond ent's novel ineffective assistance of counselte st has no basis in the law. Mo reover, since responde nt's assertion that good cause is only shown in cases involving abandonment is legally wrong, respondent's six-part ‘n effective assistance of counseltestis patently wrong. 76 counsel abandonstheir client. Instead, this Court issued a "n arrow|]"ruling (Sanders, supra, 21 Cal.4th at 706), which addressed on ly whether "ineffective assistance of cou nsel may explain or excuse d elay in presentation of a claim on hab eascorpus..." (dd. at 705 (em phasis omitted). Sandersthus follo wed Clark's reasoning thatif " counselfailed to afford adequate representat ion in a prior habeas corpus a pplication, that failure maybe offered in expl anation and justification of th e need to file anotherpetition." (Clark, sup ra, 5 Cal.4th at 780). This Co urt should thus expand uponits reasoning in Sanders and answer in the aff irmative that “some action or inaction by c ounsel short of [] abandonmen t {can| constitute good cause under t he Supreme Court Policies Re garding Cases Arising From Judgments of D eath.” (Sanders, supra, 21 C al.4th at 702 n.1). ii. Petitioner’s Trial Counsel Provided Ineffective Assistance of Counsel. Petitioner’s trial counsel was m aterially ineffective at every s tage of the trial proceedings. Trial co unsel had a conflict of interest that materially affected his performance.” C ounselfailed to adequately li tigate pretrial ee 8 See second petition, at 332 (Claim 99: Petitioner was Deni edhis Right to the Assistance of Cou nsel Underthe Sixth Amendme ntby the Trial Court's Denial of his Request to be Represented by Counselt o Litigate the Critical Proceedings Challeng ing the Inadequate Representa tion by his Appointed Trial Counsel, Prio r to and After the Guilt Phase ofthe Trial)); 336 (Claim 100: Petitioner's R ights were Violated as a Resul t of Counsels’ Conflict of Interest in Being E ssential Witnesses in the Case) ); and 337 (Claim 101: The Trial Court F ailed To Conduct The Constit utionally 771 issues, including petitioner’s involu ntary and incriminating confessions .” Trial counselfailed to identify an d investigate discoverable eviden ce demonstrating petitioner’s actual innocence and reduced culpabilit y, or argue for petitioner's innocenceor reduced culpability to the jury.” T rial Required Inquiry Into the Confli ct of Interest)). 6 See second petition, at 289 (C laim 85: Defense Counsel's Failu re to Examine Officer Carter's Cont emporancous Notes of the Confes sion Constituted Ineffective Assistance ); 303 (Claim 88: Trial Counsel R endered Ineffective Assistance by Failing to Attack the Credibility of the P olice Officers)); 305 (Claim 89: Trial counsel was Ineffective for Faili ng to Raise Issues Concerning the Missing-Ju venile Report)); 309 (Claim 90: T rial Counsel Rendered Ineffective As sistance by Failing to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Rega rding the Alleged Penal Code § 288 Violati on)); 313 (Claim 91: Trial Counse l Rendered Ineffective Assistance When HeFailed to Impeach Corn ejo Based on Favors Regularly Confe rred upon Him in Exchange for H is Testimony)); 314 (Claim 92: Tria l Counsel Rendered Ineffective A ssistance by Failing to Bring the Order fro m the First Trial to the Court’s Att ention)); 317 (Claim 93: Trial Counsel’s In effectiveness Denied Petitioner H is Right to a Speedy Trial)); 3 19 (Claim 9 4: Trial Counsel Rendered Ineff ective Assistance by Failing to Use the Police Missing-Juvenile Report to Impeach Key Prosecution Testimony and Otherwise Undermine the Legalit y of Petitioner's Arrest)); and 289 (Cl aim 85: Defense Counsel's Failur e to Examine Officer Carter's Contem porancous Notes ofthe Confess ion Constituted Ineffective Assistanc e)). 6 See second petition, at 298 (Cl aim 86: Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Eviden ce Regarding Alternate Suspects)); 2 99 (Claim 87: Trial Counsel Rend ered Ineffective Assistance at the Guilt Phase as a Result of the Failure to Adequately Investigate the Identi ty of the Actual Killer or Killers in the 1976 Offenses)); 350 (Claim 105 : Trial Counsel Rendered Ineffe ctive Assistance by Failing to Argue Ef fectively to the Jury During the G uilt Phase the Applicability of the Sec ond Degree Murder Maximum on Count One)); 355 (Claim 107: Petition er was Deniedhis Rightto the As sistance 78 counselfailed to effectively select petit ioner's jury. Despite the trial court's finding that th ere was no felony to support a felony-murderspecial circumstance, t rial counsel did nothing to challenge the felony-murder claim at the second trial. Trial counsel did nothing to protect petitioner from double jeopard y.*” Trial counsel failed to protect of Counselas a Result of Trial Counse l's Failure to Investigate and Present Mental Defenses)); and 368 (Claim 110: Trial Counsel Rendered Ineffective Assistance in Failing to A rgue the Concept of Lingering Doubt)). 6 See secondpetition, at 319 (Claim 95: Trial Counsel Rendered Ineffective Assistance during Voir D ire)); 323 (Claim 96: Failure to Conduct an Effective Voir Dire to As certain Juror’s Attitudes and Biases Regarding the Death Penalty Consti tuted Ineffective Assistance)); 328 (Claim 97(Trial Counsel Rendered I neffective Assistance for Failing to Excuse a Juror Who Knew One of th e Witnesses)); and 331 (Claim 98 (Petitioner's Right to Effective Assis tance of Counsel was Violated as a Result of Counsel's Failure to Condu ct an Adequate Voir Dire)). ‘7 See second petition, at 58 (Claim 8 (Petitioner's Prosecution for First-Degree Murder on Count III Vi olated the Prohibition against Double Jeopardy underthe State and Federal Constitution)); 63 (Claim 9: Petitioner's Prosecution on Count Ii] Violated Petitioner's Rights Underth e Fifth, Sixth, Eighth and Fourteenth A mendments)); 66 (Claim 10: Petitio ner was acquitted of felony-murder on C ount Ill and retrying him underthat theory violated Double Jeopardy Pri nciples)); 71 (Claim 11: Petitioner’s Constitutional Rights Were Violated by the Failure to Follow Statutory Requirements Regarding Charges of Felony-Murder)); 74 (Claim 12: Petitioner was Acquitted of Premedit ated Murder in CountII and Retryin g him Under that Theory Violated Dou ble Jeopardy Principles)); 77 (Clai m 13 (Trying Petitioner Under a Felony -Murder Theory for CountI Violate d Double Jeopardy Since Petitioner W as Acquitted Under That Theory at the First Trial)); and 78 (Claim 14: Deni al of Petitioner’s Right to Counsel at the Penalty Phase of the First Trial D eprived Petitioner of Due Processat the Retrial)). 79 petitioner from references, before the jur y, to his priortrial by both the prosecutor andtrial court. Trial counsel failed to effectively represe nt petitioner during the guilt phaseofhis trial.” As to the 1976 murders, counsel should have challenged and impeached Jose Feliciano' s testimony. Mr. Feliciano was the primary eyewitness relied upon by th e prosecution and refutation of his testimony wascritical to petitioner’s defe nse. Within counsel’s possession was significant evidence and inconsistent statements made by Mr. Feliciano proving that his testimony was unreliable . Within one month ofthe crime, Mr.Feliciano hadidentified at least four different men as one of the two men whohe saw that night - none ofwh om were petitioner. (Second petition, exhibit S-A, Bell Gardens Polic e Report by Det. Bowers, dated 9/13/76). Noneof this evidence was pre sented attrial or developed bytrial counsel. Likewise,trial counsel failed t o introduce, though the evidence was in their possession, testimony indic ating that the police had developed 6 See second petition at 280 (Claim 79 (The Prosecutor Committed Misconduct in Commenting on Retrials )). © See second petition, at 337 (Claim 10 2: Trial Counsel Rendered Ineffective Assistance By Failing to Impe ach Dr. Choi with his Preliminary Hearing Testimony)); 340 (Claim 103: Tr ial Counsel Rendered Ineffective Assistance By Failing to Challenge the S tatements Based on Contradictory Witness Testimony and Inconsistencies Between the Two Confessions)); 346 (Claim 104 (Trial Counsel Rendered Ineffective Assistance for Failing to Impeach Witness Jose Feliciano After He Erroneously Identified Petitioner’s Photograph on Redirect at Tri al)); and 354 (Claim 106: Trial Court Rendered Ineffective Assistance b y Failing to Inform the Jury That the Word ‘Both’ in CALJIC 8.75 Should Be Understoodas ‘Either Or’)). 80 Jeads on fourteen (14) suspects other than petitioner. (/d.). Asto the 1978 murder,trial counsel shou ld have challenged the prosecution's evidence and should have i ntroduced mental health evidence showing that it was not premeditated. Dr. Choi’s testimony was inconsistent, based on faulty scientific evid enceandtesting, and premised on erroneous conclusions. (See second pe tition, exhibit P (Declaration of Thomas Rogers, M.D.)). Dr. Choitestifi ed that the result of an anal swab test was negative for sperm, spermatozoa and two plus for acid phosphatase. Trial counsel failed to chal lenge the coroner's testimony that a sexual assault occurred despite the lack o f material evidence. (See RT 2430). Moreover, Dr. Choi's testimony w as inconsistent with his testimony during the preliminary hearing; yet, petitio ner'strial counsel failed to challenge any of Dr. Choi's testimony or i ntroduce any inconsistencies. (Second petition, at 337 (Claim 102: Trial Counsel Rendered Ineffective Assistance By Failing to Impeach Dr. Ch oi with his Preliminary Hearing Testimony). Asto all three murders,trial counsel shoul d have presented readily available evidence material to mental hea lth defenses and evidence in mitigation.” Petitioner has a long history of mentalillness, including a 7 “Phe evidence reasonably available to peti tioner's trial counsel at both trials would have negated the mens r ea elements of the murder charges and special circumstance allegations alle ged against petitioner. Said evidence included, but was not limited to, evidence of petitioner's history of multiple head traumas, which wereintenti onally inflicted by his physically abusive parents and suffered during chil dhood and adolescent accidents; 81 three year hospitalization at Atascadero State Mental Hospital. Trial counsel had obtainedpetitioner's file from Atascadero . This evidence would have negated premeditation and deliberation. B ut trial counsel failed to present this readily available evidence, which was ma terially relevantat both the guilt and penalty phases. Worse,trial counselfailed to obtain a full psychologic al evaluation of petitioner, including neuropsychologicaltesting, base d on the evidence in counsel's possession ofpetitioner's mental health probl ems. There was no tactical reason not to have such evaluations conducted aspart of the preparation ofthis case in light of petitioner’s mental h ealth background. The absenceofthis information led the mental health experts to erroneously and prejudicially believe that the results of any brain ex amination were normal. Moreover, such evidence could have reduced petitioner's legal and moral culpability for the charged offenses and provide d an independent basis on which an impartial sentencer would have conc luded that the death penalty wasnot the appropriate sentence. organic brain damage localized in the area of the tempor al andoccipital lobes; petitioner's history of severe abuse and vict imization as a child,in a dysfunctional family headed by violent, abusive and emo tionally unstable parents, that producedlife-long psychic trauma; a docu mented clinical history dating from petitioner's early adolescencereflec ting professional observation of psychiatric symptoms including auditor y hallucinations, delusional thought processes, anxiety, paranoia, severe somatic physical sensations, decompensation, schizophrenia, psychosis a nddisassociation warranting intervention and treatment; and a history o flife-long conditioning and pronenessto false confessions.” (See s econdpetition,at 365). 82 Trial counsel failed to prepare for the penalty phase though substantial evidence in mitigation was available.”! Trial counsel failed to locate, investigate, and present valuable evidence in mitigation.” Instead, trial counsel called one penalty phase witness who provided a small and inadequate glimpseofpetitioner's troubled family history. Petitioner also testified and asked for the death penalty. Presenting one witness’ testimony in mitigation and petitioner's requestto be executeddid nothing to tell the client's story during the penal ty phase. Instead, this type of testimony appears as “a strange blip" at the e nd of acase. (See Hendricks v. Vasquez (9th Cir. 1992) 974 F.2d 1099, 1110:see also Ainsworth v. Woodford (9th Cir. 2001) 268 F.3d 868, 874 11 This substantial evidence includedthe fact that petitioner was prematurely released from Atascadero State Hospital where he had been receiving valuable treatment; the fact that Atascadero State Hospital woul d notreadmit him thoughhe felt he neededfurther treatment, evidence of a horrific childhood; evidence of his sexual abuse as a child at the h ands of trusted authority figures in his life; evidence of life-long mentalillness; an d evidence of mentalillness at the time of the offenses. 2 See secondpetition, at 358 (Claim 108 (Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence)); second petition, at 361 (Claim 109 (Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phase ofTrial)); and secondpetition,at 370 (Claim 111 (Petitioner was Denied Effective Assistance of Counsel with Respect to David Schroeder's Testimony)). ® In Hendricks, the district court found counsel to have been ineffective for putting on such a scantcaseforlife. Id. The Ninth Circuit 83 (counsel was ineffective because the jurors “saw only glimmersof (the defendant’s) history, and received no evidence aboutits significa nce vis-a-vis mitigating circumstances.")). In sum, petitioner's deat h sentence was imposed by a sentencing authority that had such a grossly misle ading profile of the petitioner beforeit that, absent the trial error or omis sion, no reasonable judge or jury would have imposed a sentence of death a nd petitioner's trial counsel performed ineffectively in each and every facet of his capitaltrial.” iii. Petitioner's Appellate Counsel Provided Ineffective Assistance of Counsel. An indigent criminal defendanthasa right to appointed counselin his first appeal as ofright in state court. (See Douglas v. Californi a (1963) 372 U.S. 353). This right encompassesa right to effective assis tance of counsel for all criminal defendants in theirfirst appeal. (See Evitts v. Lucey (1985) 469 USS. 387, 396;see also Coleman v. Thompson (1991) 5 01 U.S. 722, 755). As this Court noted in Sanders: Ifastate provides convicted criminalsa first appealofright, the federal constitutional guarantees ofdue process(fair procedure) and equal protection (equality among litigants) require that state to provide appellate counsel for indigent defendants. Under such circumstances, due process requires that an appellate attorney appointedbythestate provide constitutionally effective legal assistance. Our Legislature has provided generally for the affirmed on appeal. Hendricks v. Calderon(9th Cir. 1995) 70 F.3 d 1032, 1045. 74 See second petition, at 517 (Claim 140: Trial Counsel Rendere d Ineffective Assistance). 84 appointmentof appellate counsel for indigents, and we have,in the past, held a criminal defendant is guarante ed the right to effective legal representation on appeal. (Sanders, supra, 21 Cal.4th at 715 (citing Peop le v. Lang (1974) 11 Cal.3d 134, 142; and In re Smith (1970) 3 Cal.3d 1 92, 202-203) (other citations and footnotes omitted). In Clark and Sanders, this Court recognized that appellate and habeas counsel’s failure to present all meritoriou s claims on appeal and ina habeaspetition can constitute ineffective assist ance warranting excusal of procedural default bars. (See Clark, supra, 5 Cal.4th at 780 (“If, therefore, counselfailed to afford adequate representation i n a prior habeas corpus application, that failure may be offered in explan ation andjustification of the needto file anotherpetition."); and Sanders, supra, 21 Cal.4th at 719 (“counsel's actions (or inactions) may be relevantt o the proper application of the proceduralrules that affect the availabili ty of relief on habeas corpus.”). Here, it was constitutionally ineffective assistan ce for prior counsel not to bring all potentially meritorious claims du ring prior proceedings. (See e.g., Murray v. Carrier (1986) 477 U.S. 478 , 496 (“right to effective assistance of counsel... may in a particular case be violated by even an isolated error[] if that error is sufficiently egregi ous and prejudicial.”)). (See traverse exhibit L (Declaration ofNola n, 3-5; and Declaration of Van Winkle, at 5-7). If prior counselfails to perfor m any of the duties prescribed by this Court in capital cases on appe al and counsel's failure materially affects petitioner's chance ofrelief, o r presentation ofa 85 meritorious issue undermining his capital c onviction or sentence, then a case forineffective assistance of counsel has be en made. (See Clark, supra, 5 Cal.4th at 780; see also Sanders, supra, 21 Cal .4th at 719; and Robbins, supra, 18 Cal.4th at 810). Irrespective of the ultimate success of the petition in any given case, habeas corpus counsel (or, as here, ap pellate counsel acting as habeas corpus counsel), as explained, a nte, has the duty to conduct a reasonable investigation andto pres ent notjust actually meritorious claims (an imponderabl e before adjudication), but all potentially meritorious claims. (Sanders, supra, 2\ Cal.4th at 713 (emphasis omitted )). Ultimately, prior appellate counsel failed to identify twenty-nine (29) potentially meritorious appellate claimsfor relief a nd include them within the opening brief on direct appeal.’> (See traverse exhibi t L (Declaration of Nolan, at 4). Prior counsel failed to present the clai ms because he failed to review the appellate record in detail; failed to identify triggering facts in the trial record;”6 and failed to investigate the legal basis for the claims. (/d.). 75 Claims 11, 12, 13, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 50, 51, 52, 53, 54, 64, 74, 75, 77, 78, 83, 101, 116, 117, 124, and 125. (See traverse exhibit L (Declaration of Nolan,at 4). 7 Bach of the non-repetitive appellate claims are ba sed on triggering facts in prior appellate counsel's possession at the ti me of petitioner's direct appeal in 1993. (See second petition, at 71(Claim 11 (citing the information filed by the prosecution)); 74 (Claim 12 (citing this Court's finding in Memro J that there was insufficient evidence of pr emeditated and deliberated murder)); 77 (Claim 13 (citing CT A82 and CT 486)); 122 (Claim 22 (citing RT A-294)); 123 (Claim 23 (citin g RT 2439, 2457, 2459, 9872, 2875, 2963, 2964, 2965, and 2967)); 168 (Cl aim 34 (citing CT 322; RT A-312-3, A-312-4, A-312-5, 69, 70, 98, 996, an d 998)); 172 (Claim 35 (citing RT A-312-7, RT A-312-8, RT A320, RT 76 ; RT 290, RT 371)); 174 86 In doingso, prior appellate counselfailed to fulfill their duties under this Court's policies. (See Supreme Court Policies Regarding Cases Arisin g From Judgments of Death, eff. June 6, 1989, mod.eff. December 21, 1992, stds). Importantly, appellate counsel ceased investigation and development of the claims without a reasonable basis by which to determinethe cla ims potential merit and without having earned petitioner’s permission not t o raise the claim. Respondent recognizes as much by repeatedly asserting that many non-repetitive appellate claims "could and should have been raised on appeal.” (Return at 23 and 26). Petitioner agrees. His prior appellate counsel performed ineffectively by not including the non-repetitive appellate claims in the opening brief on direct appeal. Petitioner recognizesthat in order to establish ineffective assistance of appellate counsel, he must allege: (Claim 36 (citing and discussing Anthony Cornejo's testimony)); 176 (Claim 37 (citing and discussing Anthony Cornejo's testimony)); 190 (Claim 42 (citing RT 2538-39; and RY 2545-48)); 194 (Claim 43 (citing RT 60, 2893-96, and 2926)); 197 (Claim 44(citing RT 2457, 2463, 2725, 24 39, and 2786)); 203 (Claim 45 (citing RT 2746 and discussing the admission o f magazines)); 265 (Claim 72 (citing RT 2847)); 268 (Claim 74 (citing RT 2783-84)); 269 (Claim 75 (citing RT 2786)); 271 (Claim 76 (citing RT 2785)); 274 (Claim 77 (citing RT 2786-90, 2846-47, and 2850-51)); 278 (Claim 78 (citing RT 2791-94 and 2857)); 280 (Claim 79 (citing RT 2829)) ; 287 (Claim 83 (citing RT 2980)); 288 (Claim 84 (citing RT 2981-82)); 337 (Claim 101 (citing RT 378-84)); 407 (Claim 116 (citing RT 558-576, 896- 903, 1032-33, and 1540-42)); 413 (Claim 117 (citing RT 2357-60, 2487, and 2827)); 441 (Claim 124 (citing RT A41, A207-A276, 101A,7, 27, 97 , 100, 110, and 298)); and 449 (Claim 125 (citing and discussing Memro 1)). 87 with specificity the facts underlying the claim that the inadequate presentation of an issue or omission of any issue reflects incompetence ofcounsel, i.e., that the issue is one which would haveentitled the petitionerto reliefhad it been raised and adequately presented ... and that counsel's failure to do so reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants. (Clark, supra, 5 Cal.4th at 780; see also Sanders, 21 Cal.4th at 719; and Robbins, 18 Cal.4th at 810). Petitioner has raised claims based on the violation ofhis rights arising from his retrial in violation of double jeopardy principles.” Petitioner has brought non-repetitive appellate claims based on the violation of his due process rights.” Petitioner has brought several non-repetitive appellate claims based on prosecutorial misconduct 7 See second petition, at 71 (Claim 11 (Petitioner’s Constitutional Rights Were Violated by the Failure to Follow Statutory Requirements Regarding Charges of Felony-Murder)); 74 (Claim 12 (Petitioner was Acquitted of Premeditated Murder in CountIII and Retrying him Under that Theory Violated Double Jeopardy Principles)); and 77 (Claim 13 (Trying Petitioner Under a Felony-Murder Theory for CountI Violated Double Jeopardy Since Petitioner Was Acquitted Under That Theory at the First Trial)). 78 See secondpetition, at 190 (Claim 42 (Confining Defendantto a Marked Squad Carin Full Sight of the Jury While the Jury Viewed the Crime Scene Was a Deprivation of Petitioner’s Fifth Amendment, Sixth and Fourteenth Amendment Rights)); 194 (Claim 43: Shackling Petitioner in Court Deprived Him of HisFifth, Sixth, Eighth and Fourteenth Amendment Rights)); 203 (Claim 45 (Allowing the Admission of the Magazines, Photographs and Books Violated Petitioner’s Eighth and Fourteenth AmendmentRights)); and 441 (Claim 124 (By Failing to Preserve a Complete Record on Appeal, the Court Deprived Petitioner’s Due Process Rights and State Created Liberty Interests under the Fourteenth Amendment)). 88 committed in violation ofhis constitutional rights.” Several non-repetitive appellate claims are premised on errors stemming from the biased jury that served in petitioner's case.Petitioner has demonstrated that several claims “would haveentitled the petitioner to relief had [they] been raised and adequately presented"on direct appeal. (Clark, supra, 5 Cal.4th at 780). Appellate counsel’s representation fell below the generally recognized standard ofcare and prejudiced petitioner. (See traverse exhibit M (Declaration of Van Winkle, at 5-7). It is reasonably probablethat, but 79 See secondpetition, at 265 (Claim 72 (The Prosecutor Committed Misconduct By Misstating the Law During Argument)); 268 (Claim 74 (The Prosecutor Committed Misconduct During Guilt Phase Argument When He Took Advantage of Erroneous Instructions Regarding Count1)); 269 (Claim 75 (The Prosecutor Committed Misconduct by Commenting on Petitioner’s Sexuality and Potential Punishment)); 271 (Claim 76 (The Prosecutor Committed Misconduct by Arguing Erroneous Definitions of Second Degree Murder)); Claim 77 (The Prosecutor Committed Misconduct by Arguing Two Theories of First-Degree Murderin Count3, in Violation of Double Jeopardy Principles)); 278 (Claim 78 (The Prosecutor Committed Misconduct by Unconstitutionally Shifting the Burden of Proof Onto Petitioner and His Trial Attorney)); 280 (Claim 79 (The Prosecutor Committed Misconduct in Commenting on Retrials)); 287 (Claim 83 (The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument When He Argued Both the Felony-Murder Theory and the Premeditated and Deliberated Murder Theory); and 288 (Claim 84 (The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument With His Comments AboutPetitioner's Testimony)). 8° See second petition, at 407 (Claim 116 (The Trial Court Was Partial in its Treatment of Potential Jurors During Jury Selection. The Jury Selected Was Biased in Favor of the Death Penalty and Violated Petitioner’s Sixth and Fourteenth Amendment Rights to a Fair and Unbiased Jury)); and 413 (Claim 117 (Informing The Jury That There Had Been a Previous Trial Violated Petitioner’s Right to a Fair Trial)). 89 for the foregoing deficient performanceby appellate counsel, this Court’s previous holdings with regard to petitioner's prior claims would have been different. As a result, petitioner was denied his rights to due process, effective assistance of counsel and a fair and reliable sentencing determination in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. In addition, petitioner should not be penalized for court- appointed counsel’s ineffective assistance and each of the claims contained herein should be resolved on its merits. iv. Petitioner's Prior Habeas Counsel Provided Ineffective Assistance of Counsel. This Court has repeatedly recognizedthat habeas counsel in a capital case have a hostof duties to perform in their representation ofpetitioner. (See Clark, supra, 5 Cal.4th at 780; Robbins, supra, 18 Cal.4th at 775; Gallego, supra, 18 Cal.4th at 835; and Sanders, supra, 21 Cal.4th at 719). This Court has also found that due process principles compelthe conclusion that capital habeas counsel’s failure to perform competently excuses the application of procedural default laws to successive and delayed petitions. (See Id. at 719). In Sanders, this Court outlined the situations where habeas counsel can be deemedineffective: 1. Counsel fails to conduct diligent review of trial counsel's files, the trial record andthe appellate briefs; 2. Counsel fails to reasonably conclude there are no triggering facts that would lead one to suspect the existence of issues ofpotential 90 merit; 3. Counselillegally and unethically ceases his or her efforts at the wrong time; 4. Counselfails to investigate existing triggering facts; 5. Counsel terminates his or her efforts, without a diligent and thorough investigation; 6. Counsel unreasonably concludes no potentially meritorious grounds exist for collateralrelief; 7. Counsel prepares andfiles a petition raising claimsthat are not potentially meritorious; and 8. Counsel uncovers grounds to support a potentially meritorious claim forrelief, but he or she does not prepare andtimely file a petition for a writ of habeas corpus. (Sanders, supra, 2 Cal. 4th at 708 (citations and footnotes omitted)). If the failure of prior counsel to perform any of these duties materially affects petitioner's chance ofrelief, or presentation ofa meritorious issue undermining his capital conviction or sentence, then a case for ineffective assistance of counsel has been made. (See Clark, supra, 5 Cal.4th at 780; see also Sanders, 21 Cal.4th at 719; and Robbins, supra, 18 Cal.4th at 810). Irrespectiveofthe ultimate successofthe petition in any given case, habeas corpus counsel(or, as here, appellate counsel acting as habeas corpus counsel), as explained, ante, has the duty to conduct a reasonable investigation and to present not just actually meritorious claims (an imponderable before adjudication), but all potentially meritorious claims. 9] (Sanders, supra, 21 Cal.4th at 713 (italics in original)). Here, petitioner’s prior habeas counselfailed to present forty-nine (49) potentially meritorious claimsin the first petition.®’ (See traverse exhibit L (Declaration of Nolan,at 4). Petitioner's prior habeas counsel failed to conducta diligent review of the appellate record, casefiles indicating the existence of extrinsic evidence, and failed to identify triggering facts for habeas claims of error.’ In doing so, prior habeas 81 The non-repetitive habeas claims include: Claims 14, 69, 71, 85, 86, 87, 88, 89, 90, 91, 92, 94, 99, 100, 107, 108, 109, 110, 111, 113, 114, 115, 118, 119, 120, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. ® Claim 14 (citing (1979 RT 894-941); Claim 46 (citing RT 2504-14); Claim 69 (citing second petition exhibit S-H); Claim 71 (citing secondpetition exhibits F, H, I, J, K); Claim 85 (citing second petition, exhibit S-B); Claim 86 (secondpetition exhibit S-A); Claim 87 (citing second petition exhibits S-A, G and H); Claim 88 (citing RT 304-54, 2143, and 2464); Claim 89 (secondpetition exhibits S-H and S-I); Claim 90 (citing secondpetition exhibit K); Claim 91 (citing second petition exhibits D and F); Claim 93 (citing CT 126-128, 190, 195-96, 288-289; and RT 2); Claim 94 (citing secondpetition exhibits S-H and S-I; Claim 95 (citing CT 384: RT 569, 609, 636, 652, 673, 734, 762, 797, 829, 890, 901, 910, 946, 958, 963, 987, 1027, 1055, 1079, 1092, 1152, 1171, 1194, 1211, 1231, 1255, 1356, 1370, 1380, 1404, 1432, 1445, 1454, 1465, 1491, 1514, 1536, 1546, and 1577); Claim 96(citing RT 801, 804, 1031, 1135, 1173, 1288, 1542, and 1654); Claim 97 (citing RT 2339-50, 2948, 2504, and 2521); Claim 98 (citing second petition exhibit BB); Claim 99 (citing 1979 RL 894-949); Claim 100 (citing Jose Feliciano's testimony and counsel's interview with Mr. Feliciano); Claim 102 (citing Preliminary Hearing Transcript 9-10, RT 2430, 2786, and 2845-51); Claim 103 (citing second petition exhibit S-A); and RT 2314-29); Claim 104 (citing secondpetition exhibit S-A (Bell Gardens Police Report by Det. Bowers, dated 9/13/76; RT 2320-31, and 2807); Claim 105 (citing RT 2766, 2798-800, and 2824); 92 counselfailed to fulfill their duties under this Court's policies. (See Supreme Court Policies Regarding Cases Arising From Judgments of Death Claim 106 (citing RT 2722 and 2768); Claim 107 (citing secondpetition exhibits M-X); Claim 108 (citing secondpetition exhibits M-X); Claim 109 (citing RT 2942, 2969, and secondpetition exhibits S - AA); Claim 110 (RT 2941, 2969, and 2985); Claim 111 (citing Claim 81); Claim 112 (citing second petition exhibit Q); CTS I 41-44, RT 315-35, 472, 513, and §24-559); Claim 113 (citing Claim 112); Claim 114 (citing Haney, On the Selection ofCapital Juries: The Biasing Effects ofthe Death-Qualification Process (1984) 8 Law & Hum.Behav. 121, 128; and Haney, Examining Death Qualification: Further Analysis ofthe Process Effect (1984) 8 Law & Hum.Behav. 133, 151); Claim 115 (citing CT 397, RT 217-18, 2107, and 2339-50); Claim 119 (citing second petition exhibit CC); Claim 120 (citing second petition exhibits AA and CC; Claim 126 (discussing ex-Chief Justice Malcolm Lucas’ and Attorney General Daniel Lungren's relationship); Claim 127 (discussing the lack of procedures employed by this Court for review of capital convictions); Claim 128 (citing and discussing the lack of procedures employed under Cal. Pen. Code section 190.3); Claim 129 (citing RT 2903-2904); Claim 130 (citing Shatz and Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.ULL. Rev. 1283, 1288); Claim 131 (citing Cal. Penal Code §3604 and Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp. 1387); Claim 132 (citing Lackey v. Texas (1995) 514 U.S. 1045); Claim 133 (citing Article VI, Section 1 of the ICCPR); Claim 134 (citing Customary International Law); Claim 135 (citing Universal Declaration on Human Rights, GA Res. 217A (IID), U.N. GAOR,3d Sess.art. 3, U.N. Doc. A/810 (1948); International Covenant on Civil andPolitical Rights, Dec. 19, 1966,art. 6, 999 U.N.T.S. 171, 174-75 (entered into force Mar. 23, 1976); ICCPR,art. 6; American Convention on Human Rights, art. 4, 1144 U.N.T.S. 123; and African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 LL.M. 58, art. 4); Claim 136 (citing Article 7 of t he ICCPR); Claim 137 (citing Article 14 of the ICCPR); Claim 138 (citing Article 14(1)(1) of the ICCPR); Claim 139 (citing American Convention on Human Rights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3; and Thomas Buergental, International Human Rights in a Nutshell (2d ed. 1995) 220); Claims 140-143 (adopting and incorporating by reference all facts and claims set forth elsewherein this petition). 93 (eff. June 6, 1989; mod. eff. December 21, 1992,stds)). Prior habeas counselfailed to reasonably investigate petitioner’s case. Petitioner’s prior habeas counsel failed to include all potentially meritorious habeasclaimsforrelief in his first petition. (See traverse exhibits H, L, and M (Declarations of Giannini, Nolan, and Van Winkle)). Prior counselalso failed to develop thirty (30) exhibits included within the secondpetition underlying several claims oferror.” Respondent recognizes as much byasserting that "nearly all” petitioner's non-repetitive claims are based on facts that "were available and discoverable by him or his attorneys, at the time of his earlier habeaspetition." (Return at 49). Respondentfails to understandthat prior counsel's failure to develop the non-repetitive claims, despite possession of the factual and legal bases for the claim, proves that prior counsel performed ineffectively. (See Sanders, supra, 21 Cal.4th at 708). Petitioner has shownthat his prior habeas counsel performed 8 See Claim 15 (citing second petition exhibits B-K); Claim 19 (Citing secondpetition exhibits G and H); Claim 20 (citing second petition exhibits C and D); Claim 68 (citing second petition exhibit CC); Claim 71 (citing secondpetition exhibits F-K); Claim 90 (citing secondpetition exhibit K); Claim 91 (citing second petition exhibits D and F); Claim 98 (citing secondpetition exhibit BB); Claim 102 (citing secondpetition exhibit P); Claim 108 (citing secondpetition exhibits M - X); Claim 109 (citing second petition exhibits S - AA); Claim 112 (citing second petition exhibit Q); Claim 118 (citing second petition exhibit CC); Claim 119 (citing secondpetition exhibit CC); Claim 120 (citing secondpetition exhibit AA); Claim 121 (citing secondpetition exhibit G, H, and M); and Claim 125 (citing second petition exhibit DD). 94 deficiently by failing to present eighty-seven (87) non-repetitive claims, seventy-one (71) of which he concedes should have been raised. (See traverse exhibit L and M (Declaration of Nolan, at 4; and Declaration of Van Winkle, at 5-7). Petitioner recognizes that in orderto establish ineffective assistance of habeas counsel, he must allege that the inadequate presentation of an issue or omission of any issue and “thatthe issue is one which would haveentitled the petitioner to relief had it been raised and adequately presented in the initial petition." (Clark, supra, 5 Cal.Ath at 780; see also Sanders, 21 Cal.4th at 719; and Robbins, 18 Cal.4th at 810). He has done so. Petitioner's non-repetitive claims are premised on: 1) state misconduct committed in violation of the due process clause of the Fifth Amendment, in the form of withheld or destroyed evidence;** 2) violations of petitioner's Sixth Amendmentright to effective assistance of counsel;®° * See secondpetition, at 205 (Claim 46 (The Trial Court Erred by Overruling Trial Counsel’s Objection for a Failure to Comply with a Discovery Order by the Bell Gardens Police Department and for Allowingit to Be Introduced as Surprise Testimony, in Violation ofPetitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment Rights by Depriving Him ofa Fair Trial)); 253 (Claim 69 (The Prosecution's Presentation of Facts was Directly Contrary to Those Containedin the Missing-Juvenile Report)); and 256 (Claim 71 (The Prosecutor Committed Misconduct in Violation of Petitioner’s Constitutional Rights in Failing to Disclose Impeachment Evidence Regarding Jailhouse Snitch Anthony Cornejo)). 85 See secondpetition, at 78 (Claim 14 (Denial of Petitioner’s Right to Counsel at the Penalty Phaseofthe First Trial Deprived Petitioner of Due Process at the Retrial); 289 (Claim 85 (Defense Counsel's Failure to Examine Officer Carter's Contemporaneous Notes of the Confession Constituted Ineffective Assistance)); 298 (Claim 86 (Trial Counsel 95 Rendered Ineffective Assistance by Failing to Investigate and Present Evidence Regarding Alternate Suspects); 299 (Claim 87 (Trial Counsel Rendered Ineffective Assistance at the Guilt Phase as a Result of the Failure to Adequately Investigate the Identity of the Actual Killer or Killers in the 1976 Offenses)); 303 (Claim 88 (Trial Counsel Rendered Ineffective Assistance by Failing to Attack the Credibility of the Police Officers)); 305 (Claim 89 (Trial counsel was Ineffective for Failing to Raise Issues Concerning the Missing-Juvenile Report)); 309 (Claim 90 (Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Regarding the Alleged Penal Code § 288 Violation)); 313 (Claim 91 (Trial Counsel Rendered Ineffective Assistance When HeFailed to Impeach Cornejo Based on Favors Regularly Conferred upon Him in Exchange for His Testimony)); 317 (Claim 93 (Trial Counsel’s Ineffectiveness Denied Petitioner His Right to a Speedy Trial)); 319 (Claim 94 (Trial Counsel Rendered Ineffective Assistance by Failing to Use the Police Missing- Juvenile Report to Impeach Key Prosecution Testimony and Otherwise Underminethe Legality of Petitioner's Arrest)); 320 (Claim 95 (Trial Counsel Rendered Ineffective Assistance during Voir Dire)); 323 (Claim 96 (Failure to Conduct an Effective Voir Dire to Ascertain Juror’s Attitudes and Biases Regarding the Death Penalty Constituted Ineffective Assistance)); 328 (Claim 97 (Trial Counsel Rendered Ineffective Assistance for Failing to Excuse a Juror Who KnewOneofthe Witnesses)); 331 (Claim 98 (Petitioner's Right to Effective Assistance of Counsel was Violated as a Result of Counsel's Failure to Conduct an Adequate Voir Dire)); 332 (Claim 99 (Petitioner was Denied his Right to the Assistance of Counsel Under the Sixth Amendmentby the Trial Court's Denialof his Request to be Represented by Counselto Litigate the Critical Proceedings Challenging the Inadequate Representation by his Appointed Trial Counsel, Prior to and After the Guilt Phase of the Trial)); 336 (Claim 100 (Petitioner's Rights were Violated as a Result of Counsels’ Conflict of Interest in Being Essential Witnesses in the Case); 337 (Claim 102 (Trial Counsel Rendered Ineffective Assistance By Failing to Impeach Dr. Choi with his Preliminary Hearing Testimony)); 340 (Claim 103 (Trial Counsel Rendered Ineffective Assistance By Failing to Challenge the Statements Based on Contradictory Witness Testimony and Inconsistencies Between the Two Confessions)); 346 (Claim 104 (Trial Counsel Rendered Ineffective Assistance for Failing to Impeach Witness Jose Feliciano After 96 3) violations ofpetitioner's right to an impartial jury; 4) juror misconduct committed in violation of the Sixth and Fourteenth Amendments;*° 5) petitioner's incompetence to stand trial;®’ and 6) violation ofpetitioner's He Erroneously Identified Petitioner’s Photograph on Redirectat Trial)); 350 (Claim 105 (Trial Counsel RenderedIneffective Assistance by Failing to Argue Effectively to the Jury During the Guilt Phase the Applicability of the Second Degree Murder Maximum on Count One)); 354 (Claim 106 (Trial Court RenderedIneffective Assistance by Failing to Inform the Jury That the Word ‘Both’ in CALJIC 8.75 Should Be Understood as‘Either Or’)); 355 (Claim 107 (Petitioner was Deniedhis Right to the Assistance of Counsel as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses); 358 (Claim 108 (Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence)); 361 (Claim 109 (Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidencein the Sentencing Phase of Trial)); 368 (Claim 110 (Trial Counsel Rendered Ineffective Assistance in Failing to Argue the Concept of Lingering Doubt)); and 370 (Claim 111 (Petitioner was Denied Effective Assistance of Counsel with Respect to David Schroeder's Testimony)). 8 See second petition, at 371 (Claim 112 (Petitioner was Denied an Impartial Jury Drawn from a Fair Cross-Section of the Community)); 401 (Claim 113 (Petitioner's Rights were Violated as a Result of Extreme Under Representation of Hispanics and African-Americans in the Jury Pool)); 401 (Claim 114: The Denial ofA Fair Cross-Section of Jurors in the Guilt Phase Violated Petitioner’s Constitutional Rights)); and 404 (Claim 115 (Juror Zinn Committed Juror Misconductin Violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment Rights). 87 See secondpetition, at 417 (Claim 119 (Petitioner was Mentally Incompetent to Stand Trial)); and 422 (Claim 120 (Petitioner Was Deprived of His Right of Access to and Assistance of Competent Mental Health Experts, in Violation ofAke v. Oklahoma)). 97 rights underthe international law and the United States Constitution." In sum,these claims detail the multitude oferrors that, cumulatively, rendered petitioner's capital proceedings fundamentally unfair.” Prior habeas counsel’s performancefell below the generally recognized standard of care and prejudiced petitioner. (See traverse exhibit M (Declaration of Van Winkle, at 5-7). Asa result, petitioner was denied his rights to due process, effective assistance of counsel and a fair and reliable sentencing determination in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. In addition, petitioner should not be penalized for court-appointed counsel’s ineffective assistance and each ofthe claims contained herein should be resolved on its merits. To the extent any of petitioner’s claims were previously available, it was constitutionally ineffective assistance of counsel not to bring these claims during prior proceedings. (See, e.g., Murray v. Carrier (1986) 477 U.S. 478, 496 (“right to effective assistance of counsel .. . may in a particular case be violated by 88 See second petition, at 450 (Claim 127 (This Court Failed to Conduct a Constitutionally Adequate Review of Petitioner’s Case and Institutionally Does Not Conduct Such Review in Capital Cases)); 490 (Claim 132 (Execution of Petitioner after Prolonged Confinement Violates the Eighth Amendment Prohibition of Cruel and Unusual Punishment)); and 510 (Claim 137 (Petitioner’s Conviction and Sentence Violate His Right to DueProcess)). 8° See second petition, at 517 (Claim 141 (Appellate Counsel Rendered Ineffective Assistance)); 518 (Claim 142 (Habeas Counsel Rendered Ineffective Assistance)); and 519 (Claim 143 (Cumulative Constitutional Error Requires a Reversal of the Convictions and Death Sentence)). 98 even an isolated error [] if that error is sufficiently egregious and prejudicial"). Accordingly, the ineffective assistance of prior court appointed counselin this case justifies the delayed presentation ofthe second petition. v. Petitioner Has Suffered From The Serial Ineffective Assistance of Trial, Appellate, and Prior Habeas Counsel. Respondent wronglyasserts that Petitioner's case for good causeis "Ts]everely lacking in specificity..." (Return, at 33). Petitioner hasin fact, "included the necessary allegations [and] made the proper showing"and has not proffered inadequatejustifications. (Contra id. at 34). In his second petition, petitioner attributed "any delay [] to the ineffectiveness ofprior appellate and habeas counsel appointed by this Court to represent Mr. Reno." (Secondpetition, at 13). Petitioner noted: "To the extent that claims should have beenraised on direct appeal or in the initial habeas petition, petitioner was denied the effective assistance of appellate and habeas counsel appointed by this Court." U/d.). In the second petition, petitioner also asserted: Present counsel learned of the bases for relief alleged in this petition during this time period and the claims have been presented as quickly as possible after the legal and factual bases for them became known. Petitioner was unable to raise issues contained in this petition at an earlier date because former counsel, appointed by this Court, failed to raise these issues on direct appealor in the previous state habeas corpusaction....The only reasonthese claims werenot raised on appealorin thefirst habeaspetition is because ofthe ineffectiveness ofprior counsel appointed by this Court. (Second petition, at 18-19). 99 Respondentincorrectly argues that petitioner has not proventhat prior appellate and habeas counsel's decision notto include the eighty-seven (87) nonrepetitive and potentially meritorious claims on direct appeal, or in the first petition, was premised on their "reasonabl|[e] conclu[sion] that they were lacking[] potential merit or had been forfeited or waived." (Return,at 32). Respondentalsoerrs in arguingthat prior counsel's decision not to bring these claims was not premised on a "strategic choice." (Contra id., at 32).° Prior counselfailed to identify the factual and legal basis of the non- repetitive claims, and admitted that, had he identified the claims,they would have beenraisedin the first petition. (See traverse exhibit L (Declaration of Nolan,at 3-4). Prior counselis clear that the omission of— the claims was not a "strategic choice." (d.). By this traverse, petitioner has shownthat, in failingto raise all the non-repetitive claims, prior counsel failed to: 1. Conducta diligentand thoroughreviewoftrial counsel'sfiles, °© The fact that petitioner's appellate and prior habeas counsel was the sameattorney further substantiates his claim that prior counsel performedineffectively. Appellate counsel failed to include potentially meritorious appellate claims in his opening brief. He likewise failed to include those claimsin his first petition. Similarly, since prior appellate counsel failed to identify on direct appeal triggering facts leading to potentially meritorious claims, he failed to conduct investigation into those claims while composing the first petition. Thus, here, because prior appellate and habeas counsel wasonein the same,petitioner never received the benefit, until current counsel's appointment, of an independentreview of his case and the claimsoferror affecting his convictions and sentence from separate appellate and habeas counsel. 100 the trial record, the appellate briefs, and other matters relative to petitioner’s capital trial and appeals. (Sanders, supra, 21 Cal.4th at 708); 2. Identify triggering facts that would lead to potentially meritorious appellate claims. (Sanders, supra, 21 Cal.4th at 708); 3. Conduct reasonable investigation into claims of error premisedontriggering facts available in the appellate record. (Sanders, supra, 21 Cal.4th at 708); 4, Present all potentially meritorious appellate claims. (Sanders, supra, 21 Cal.4th at 707); 5. Identify triggering facts that wouldlead to potentially meritorious habeas claims. (Sanders, supra, 21 Cal.4th at 708); 6. Conduct reasonable investigation into habeas claims premised on triggering facts outside the appellate record. (Sanders, supra, 21 Cal.4th at 708); 7. Timely presentall potentially meritorious habeas claims. (Sanders, supra, 21 Cal.4th at 707); 8. | Adequately presentall potentially meritorious appellate and habeasclaims. (Clark, supra, 5 Cal.4th at 775); 9. Seek funding to investigate claims premised on triggering facts in the record. (Gallego, supra, 18 Cal.4th at 624); and 10. Failed to fulfill their duties under this Court's policies. (See Supreme Court Policies Regarding Cases Arising From Judgments of Death, eff. June 6, 1989, mod. eff. December 21, 1992, stds.). 101 There wasno strategic purpose for appellate and habeas counsel's ineffective decisions, and petitioner was prejudiced by prior counsel's failings. Counsel’s performancefell below any objective standard of reasonableness underprevailing professional norms. (See traverse exhibit M (Declaration of Van Winkle, at 5-7). Moreover, because petitioner's current petition includes meritoriousclaims that underminehiscapital convictions and death sentence, particularly claims based ontrial counsel’s deficient performance,prior appellate and habeas counsel performed ineffectively and materially prejudiced petitioner's chances of earningrelief. But for counsel’s failings, petitioner would never have been sentenced to death or would have had his convictions and sentence reversed on appealor in habeas. The failure to file meritorious claims in prior pleadings, constitutes a violation of the petitioner's right to "assume that counsel is competent and is presenting all meritorious claims,” (Clark, supra, 5 Cal.4th at 780), and acts as “good cause for delayed presentation of claims." (Sanders, supra, 21 Cal.4th at 709). Petitioner has demonstrated good cause based on the ineffective assistance of his appellate and prior habeas counsel. Petitioner has shownthat prior counselfailed to identify triggering facts, failed to investigate potentially meritorious claims and failed to timely include several meritorious claims within the priorpetition all required by this Court in its appointment policies. (See generally traverse exhibits H and L (Declarations of Giannini, and Nolan)). As such, this Court need not 102 conducttimeliness review of each claim, but instead may review all the non-repetitive claims included within Petitioner's second petition. (Sanders, supra, 21 Cal.4th at 721 n. 13). c. Petitioner Has Shown Other Grounds,in Addition to Ineffective Assistance of Prior Habeas Counsel, Constituting Good Cause And Warranting the Delayed Filing of His Petition. Even if this Court finds that prior counsel wasnot ineffective, petitioner can establish other grounds constituting good cause andjustifying the delayed presentation ofhis claimsto this Court. Petitioner has supplied specific and particularized details meeting this Court’s requirement, which "explain and justify any substantial delay in presenting a claim." (Clark, supra, 5 Cal.4th at 783 (citing Swain, supra, 34 Cal.2d at 304)). First, as to all non-repetitive claims "the factual basis for a claim was unknownto the petitioner and he had no reason to believe that the claim might be made." (Clark, supra, 5 Cal.4th at 775; see traverse exhibit K (Declaration of Reno, at 1-2). Petitioner's current counsel learned of the factual and legal basis of each claim after completing the first and second phasesin the developmentofthe petition and reading all the case materials andinvestigating triggering facts. (Compare Sanders, supra, 21 Cal.4th at 709; with traverse exhibit H (Declaration of Giannini, at 3-8). Petitioner learnedof the factual basis of the claims following reasonable investigation and completion of the draft of the petition in April 2003. (See traverse exhibits I and K (Declaration of Stetler, at 3-4; and Declaration of Reno,at 103 1-2). Petitioner's claims here are not "patently deficient" andpetitioner has proffered more than general allegations. (See return, at 34). Second, through no fault of his own, petitioner was unable to present several claims and has now asserted those claims as promptly as reasonably possible. (Clark, supra, 5 Cal.4th at 775). Petitioner received ineffective assistance from court-appointed counsel and can justify the delayed presentation of his claims accordingly. (See Id. at 792 (citing and discussing Watlington, supra, 491 Pa. at 245)). Neither petitioner or his prior counsel were previously aware of the factual and legalbasis ofall — eighty-seven of the non-repetitive claims prior to current counsel's preparation of the secondpetition. (See traverse exhibits L and K (Declaration of Nolan,at 3-4; and Declaration of Reno,at 1-2). As soon as petitioner became awareofthe claims, he directed current counselto file a second petition for writ of habeas corpus(see Jd.), which counseldid after perfecting a primafacie case for each claim. (See traverse exhibit L ( Declaration of Thomson,at 3-4). Third, petitioner delayed the presentation of his petition until a prima facie case forall his potentially meritorious claims could bepresented. (See traverse exhibits I (Declaration of Thomson,at 3-4). Thus,petitioner's case is not "patently deficient.” (Return, at 34). Upon completion ofthefirst and second phasesofpetition development, research and investigation, on April 23, 2003 Mr. Giannini delivered to Mr. Thomsona draft federal petition. (See traverse exhibits H (Declaration of Giannini, at 3-11). Mr. 104 Thomson and Mr.Stetler then developed and prepared the draft state exhaustion petition, completing the third phase ofpetition development, and submitted the final version to this Court on May 10, 2004. (See traverse exhibits I and J (Declaration of Thomson, 2-5; and Declarationof Stetler, at 2-5). Respondentalleges that petitioner waited to present his second petition until he "could conducta federally funded plenary investigation in conjunction with his preparation of the federal habeas." (Return,at 34). Without a basis, respondentsays that petitioner has been conducting ongoing "federally funded [] investigation." (/d.). Respondenttries to fault petitioner for not asserting "that certain claims were perfected andthen delayed for good cause pending his completion of an ongoing investigation into any other matter." (/d., at 35 (citation omitted)). Contrary to respondent's assertions, petitioner did not use "[the] preparation ofthe federal habeas[petition] [to] explain[] [Jor justif[y] the failure to include the claims in the prior [state] habeas corpuspetition." (/d., at 34 (citations omitted)). Instead, as petitioner has explained, current counsel's preparation revealed prior appellate and habeas counsel's failure to conduct reasonable investigation andraise "all potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780). The second petition wasfiled as soon as reasonably possible, and any delayis attributable to the developmentof a primafacie case for each of the one-hundred-forty-three (143) claims in the petition and 105 the time necessary to compose andfile a petition accordingto this Court's rules. Respondent's conflicting assertions cannot stand in the face of proof, from counsels’ declarations, that up until submission of the second petition, petitioner was investigating and developing aprimafacie case for claims of error premised ontriggering facts in and outside the record that undermined his capital conviction and sentence. Like in Sanders, this Court should: resolve this issue on the pleadings and simply accept the assertions in counsel's sworn declaration. Ourresolutionofthis issue on the pleadings is consistent with our decision in Robbins, supra, 18 Cal.4th 770, in which, faced with conflicting allegations in the respondent's return and the petitioner's traverse regarding whenthe petitioner learned of the factual basis of a claim, we resolved the issue on the pleadings and acceptedthe petitioner's sworn statements. Ud. at 798-799.) . (Sanders, supra, 2\ Cal.4th at 714). Respondent wrongly accuses petitioner of conducting "a fishing expedition.” (See return at 35). Present counsel has not done so and has only focused on the claimsin petitioner's case that are potentially meritorious. Nor have counsel wasted resources. Petitioner recognizes that, in the past, this Court has suggested that counsel should "judiciously narrow"the set of claims presented in a petition. (Sanders, supra, 21 Cal.4th at 709). Petitioner recognizes that this Court will not: consider on the merits successive petitions attacking the competenceoftrial or prior habeas corpus counsel which reflect nothing more than the ability ofpresent counselwith the benefit of hindsight, additional time and investigative services, and newlyretained experts, to demonstrate that a different or better defense could have been mounted had trial counsel or prior habeas corpus counsel had similar advantages. 106 (Clark, supra, 5 Cal.4th at 780). To put it conversely, petitioner recognizes that "[cJounsel has no obligation to prepare andfile a petition for a writ of habeas corpusraising claims that are not even potentially meritorious." (Sanders, supra, 21 Cal.4th at 708 (emphasis omitted)). Here, however, current counsel has only presented claims of "potential[] merit[]" that prior counsel failed to raise on direct appeal or in the first petition. (See traverse exhibits H, I, and M (Declaration of Giannini, at 4; Declaration of Thomson,at 4; and Declaration of Van Winkle, at 5-6). Indeed, had they beenraised earlier, this Court would have already decided them on appeal andin habeas. Similarly, petitioner has identified the triggering facts and laws underlying each potentially meritorious claim that prior counselfailed to identify. Moreover, petitioner’s non-repetitive claims do not lack "potential[] merit|]." (Contra return, at 35). Petitioner's prior habeas counselfailed to identify the legal basis for the claims or ceased investigation and developmentofthe claims before determining their potential merit. Third, petitioner has not taken any "unexplained delaysor intervals between investigations." (Contra return, at 34 (citation omitted)). This is tacitly proven bythe fact that respondent’s conclusory allegation fails to specify any particular delay. Since their appointment, petitioner’s counsel have investigated potentially meritorious claims of error. There has been no delay in the investigation and counsel filed the secondpetition as soon as reasonably andpractically possible. In light of petitioner's diligence, he has 107 justified the delayed presentation of these claims and good cause for exemption of his petition from this Court's procedural default laws has been shown. 6. The Procedural Dismissal of Petitioner's Claims Will Result in a Miscarriage of Justice in His Case. Evenif a petition is filed with substantial delay and without justification for the delay, this Court will reach the merits of a claim ifit qualifies under oneoffour “miscarriage ofjustice" exceptions listed in Clark, supra, 5 Cal.4th 797-98. A case is said to be premised on a miscarriage ofjustice if the petitioner demonstrates: (I) 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; (ii) that the petitioner is actually innocentofthe crimeor crimes of which he or she was convicted; (iii) 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 (iv) that the petitioner was convicted or sentenced under an invalid statute. (Robbins, supra, 18 Cal.4th at 780-781 (quoting Clark, supra, 5 Cal.4th at 797-98))." °! Whenassessing thefirst three exceptions, it is assumed that a federal constitutionalerror is stated. (Robbins, supra, 18 Cal.4th at 811- 12). However, this Court "will not decide whether the alleged error actually constitutes a federal constitutional violation. Instead, we shall assume,for the purpose of addressing the proceduralissue, that a federal constitutional 108 In his secondpetition, petitioner alleged that his claimsfor relief came within several miscarriage ofjustice exceptions.” Prior appellate and habeas counselfailed to present potentially meritorious claims premised on fundamental constitutional error. Trial counsel's ineffective assistance led to a grossly inadequate portrait of petitioner during the penalty phase.” Moreover, petitioner was sentenced to death under several invalid statutes error is stated, and we shall find the exception inapposite if, based upon our application ofstate law, it cannot be said that the asserted error “led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner." (Ud. (citing Clark, supra, 5 Cal.4th at 797)). 2 See secondpetition, at 20 ("Even if this Court finds there has been unjustified delay in filing this secondpetition, this case fits within several exceptions to the general rule against delayed or successivepetitions as set forth in Clark, supra, 5 Cal 4th at 750. First, petitioner's claims demonstrate that a fundamental miscarriage ofjustice occurred. These errors of constitutional magnitude led to a trial so fundamentally unfair that no reasonable juror would have convicted or sentencedpetitioner to death in the absence oftheseerrors."). 3 See secondpetition, at 20 (Second, because of these errors, [petitioner] was sentenced to death by a jury that had such a "grossly misleading profile" of him that, absent the errors and omissionsraised here, "no reasonable judgeor jury would have imposed a sentence ofdeath." (Clark, supra, 5 Cal.4th at 798). Here, it can be said: "the picture of the defendantpainted by the evidenceattrial . . . differ[s] so greatly from his actual characteristics that ... no reasonable judge or jury would have imposed the death penalty had it been aware of defendant's true personality or characteristics." (Ud. at n. 34). Thus, the claims presented should "be considered on their merits even though presented for the first time in a successive petition." (/d.)). 109 underthe California and United States Constitutions.” Petitioner's claims should be heard becauserefusal to do so would constitute a miscarriage of justice. a. Several ofPetitioner's Claims Are Premised on Error of Sufficient Constitutional Magnitude to Create a Fundamentally Unfair Trial And Absent Those Errors No Reasonable Judge or Jury Would Have Convicted Petitioner. Respondentincorrectly argues that "petitioner has alleged no facts demonstrating a fundamental miscarriage ofjustice." (Return, at 36). Respondentis the one who is “conclusory”in asserting that petitioner’s claims oferror do notrest on violations of his constitutional rights and did °4 See secondpetition, 22- 23 (Petitioner's confinementis unlawful, unconstitutional and void, in that his conviction and death sentence were unlawfully and unconstitutionally imposedin violation ofhis rightsto: notice, due process,liberty, fair trial, present a defense, unbiasedjury, jury trial, effective assistance of counsel, heightened capital case due process, reliable and reviewable guilt determination, individualized, reliable and reviewable penalty determination, fairness in capital case sentencing, the prohibition against cruel and unusual punishments, and the prohibition against death biased proceedings,all constituting arbitrary and unreasonable decision making. Abrogationofthese rights is in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Article I, §§1, 7, 13, 15, 16 and 17 of the California Constitution, and statutory and decisional law of the State of California and the Supreme Court. (See e.g., Hicks v. Oklahoma (1980) 447 U.S. 343, 346-347; Drope v. Missouri (1975) 420 US. 162, 172, 181; Pate v. Robinson (1966) 383 U.S. 375, 387; Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084; People v. Laudermilk (1967) 67 Cal.2d 272, 282; Crane v. Kentucky (1986) 476 U.S. 683, 690; Duncan v. Louisiana (1968) 391 U.S. 145, 147-158; Strickland v. Washington (1984) 466 U.S. 688, 694; Coy v. Iowa (1988) 487 U.S. 1012, 1015-1020; Akev. Oklahoma (1985) 470 U.S. 68, 83; Woodson v. North Carolina (1976) 428 U.S. 280, 304."). 110 not lead to a fundamentally unfair trial. A review of the secondpetition demonstrates the necessary facts and non-conclusory allegations to substantively review petitioner’s claims. Petitioner has demonstrated that his trial was rife with constitutional error “of such magnitude asto lead to a trial that was so fundamentally unfair that no reasonable juror would have convicted him in the absenceofthe error.” (Contra id. at 37). In the secondpetition, petitioner included eighteen (18) non- repetitive appellate claims premised on fundamental constitutionalerror that strikes at the heart of the trial process.” (See Harris, supra, 5 Cal.4th at 826-836). Additionally, whenall of petitioner's non-repetitive appellate claims are viewed cumulatively, the errors likewise strike at the heart ofthe trial. In addition,petitioner has presented forty-two (42) non-repetitive habeas claimsthat include constitutional errors that are fundamental in nature.Petitioner has thus made a sufficient showing demonstrating that errors occurring at his trial struck at the core ofthe trial process andthat, in their absence, no reasonable juror would have convicted him or voted for a sentence of death. Whenall of petitioner's non-repetitive habeas claims are viewed cumulatively, the errors fundamentally upset the trial process. In 5 See Claims 11, 12, 13, 42, 43, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 116, 117, and 124. © The non-repetitive habeas claims that are premised on fundamental errors include: Claims 14, 46, 69, 71, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 119, 120, 127, 132, 137, 141, 142, and 143. 111 the absenceofthese errors, no reasonable jury would have convicted petitioner of the capital homicides, special circumstance, or sentenced him to death. b. Petitioner is Actually Innocent of the Crimes of Which He Has Been Convicted. Petitioner is actually innocent of the 1976 killings and has demonstrated his reduced culpability as to the 1978 killing.”’ Petitioner has submitted evidenceof his actual innocence and reduced culpability based on newly discovered evidence that points to his innocence, undermines the prosecution's assertion that the 1978 killing constituted a first-degree murder, and points to the fact that, if petitioner committed the crime, he had a reduced culpability.* As such,petitioner's actual innocence claims should *7” See Schlup v. Delo (1995) 513 U.S. 298 (distinguishing stand- alone actual innocence claims under Herrera v. Collins (1993) 506 U.S. 390 from Schlup actual innocence accompanied by constitutionalerror claim; holding that actual innocence standardin the latter case is whether the constitutional violation probably resulted in the conviction of one whois actually innocent). °° At the filing of his second petition, counsel had established a primafacie case of petitioner's innocence. (See Gallego, supra, 18 Cal.4th at 834). The claim, however, was not fully developed due to a lack of funding and time. In conjunction with this traverse, petitioner has filed a motion for funding for investigative services to further develop his actual innocence claims. Likewise, because the issuance of an order to show cause in his case has granted petitionerall the rights attached to the cause, petitioner also expects to movefor discovery and seek subpoenas where needed. In sum, petitioner will seek to develop his actual innocence claims while his secondpetition is being resolved and will supplementhis traverse accordingly. 112 be considered by this Court.” This Court hasarticulated a standard of review of claims of actual innocence: the evidence supporting such claims should be “conclusive” and “point unerringly to innocence.’" (Un re Hall (1981) 30 Cal.3d 408, 423 (relying on Jn re Weber (1974) 11 Cal.3d 703)). The Court rejected, however, the suggestion that this standard imposes: either the hypertechnical requirement that each bit of prosecutorial evidence be specifically refuted, or the virtually impossible burden of proving there is no conceivable basis on which the prosecution might have succeeded. It would be unconscionable to deny relief if a petitioner conclusively established his innocence withoutdirectly refuting every minute item of the prosecution’s proof, or if a petitioner utterly destroyed the theory on which the People relied without rebutting all other possible scenarios which, if they had been presentedat trial, might have tended to support a verdict ofguilt. (Hall, supra, 30 Cal.3d at 423; see also Gonzalez, supra, 51 Cal.3d at 1246 (italics in original). Thus, petitioner need not show that each independentpiece of evidence was unreliable or otherwise unconstitutionally admitted. Instead, * See secondpetition, at 298 (Claim 86: Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Evidence Regarding Alternate Suspects); second petition, at 299 (Claim 87: Trial Counsel Rendered Ineffective Assistance at the Guilt Phase as a Result of the Failure to Adequately Investigate the Identity of the Actual Killeror Killers in the 1976 Offenses); second petition, at 350 (Claim 105: Trial Counsel Rendered Ineffective Assistance by Failing to Argue Effectively to the Jury During the Guilt Phase the Applicability of the Second Degree Murder Maximum on Count One); second petition, at 355 (Claim 107: Petitioner was Denied his Right to the Assistance of Counsel as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses); and second petition, at 368 (Claim 110: Trial Counsel Rendered Ineffective Assistance in Failing to Argue the Concept of Lingering Doubt). 113 he must simply show that the verdict is unreasonable. The petition demonstrates the unreasonablenessofthe verdictand sentence. A petition in this category might offer newly discovered, irrefutable evidence of innocence of the offense or degree of offense of which the petitioner was convicted. Although the evidence could and should have been discovered earlier, the delay in making the claim would notbe a bar to consideration of the merits ofthe petition ifthe petitioner satisfied the court that the evidence was such that it would ‘undermine the entire prosecution case and point unerringly to innocence or reduced culpability.’ (Clark, supra, 5 Cal.4th at 798 n. 33 (quoting People v. Gonzalez (1990) 51 Cal.3d 1179, 1246) (emphasis added)).'”° Respondentasserts that petitioner's "claims do not suggest, much less establish, that he is actually innocentofthe crime of which he was convicted." (Return, at 37). Respondentasserts that the evidence of petitioner's guilt was "overwhelming." (Id.). Respondent is wrong. Thethirty (30) exhibits submitted with the second petition undermine the “entire prosecution case or point unerringly to innocence or reduced culpability." (Robbins, supra, 18 Cal4th at 812 (citation omitted)). The exhibits paint a picture of petitioner not scen by his jury at trial. They 19 Ty Clark, this Court discussed the Lindley standardin the context of this miscarriage ofjustice exception to the timeliness bar. (See Clark, supra, 5 Cal.4th at 798 n 33). Thus, the Lindley standard applies to proof of actual innocence as to both procedural default and substantive claims of innocence. (In re Lawley (2008) 42 Cal.4th 1231, 1239). (See second petition, at 298 (Claim 86: Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Evidence Regarding Alternate Suspects); second petition, at 299 (Claim 87: Trial Counsel Rendered Ineffective Assistance at the Guilt Phase as a Result of the Failure to Adequately Investigate theIdentity of the Actual Killer or Killers in the 1976 Offenses)). 114 include exhibits detailing petitioner's incompetenceto standtrial'®' and proving that the 1978 homicide was not committed during the course of a felony.'” Likewise, the exhibits contain invaluable exculpatory and impeachment evidencethat would have undermined the prosecution's use of false and perjurious informant testimony.'*? (See generally, Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions (2006) 37 Golden Gate U. L. Rev. 107). The evidence petitioner now offers could not be "easily refute[d]" by the prosecution and would not be rejected by "any reasonable juror." (Contra return, at 37). Hadtrial counsel located and developed the evidence, it would have “completely undermine[d] the entire structure of the case presented by the prosecution at the time of the conviction" and sentence imposed upon petitioner. (Lindley, supra, 29 Cal.2d at 723). The 1976 homicides involved the killing of Scott F. and Ralph C. The boys had been night fishing at Ford Park Lake, in Bell Gardens, 01 See secondpetition, exhibit AA (Declaration of Gretchen White), and CC (Declaration of George Woods). 1 See second petition exhibit P (Declaration of Thomas Rogers, MD). 13 See second petition exhibits D (Correspondence - Cornejo- Folsom to San Diego); E (Letter from David Freeman); F (Memorandum from DA's office-Stephen Kay); G (Investigator's Report); H Memorandum from DA's office - Kathy Cedy); I (Memorandum from DA'soffice - Christopher Darden); J (People v. Daniels Disposition Report); K (Memorandum from DA's office - Michael Shultz); L (Declaration of Scott Bushea); M (Declaration of Jose Feliciano); N (DA internal memo - White); and O (TwoInternal DA memos concerning phone calls from Storch). 115 California. They were last seen with two men, one ofwhom rode a motorcycle. No oneidentified petitioner as being either one of these two men. (See second petition exhibit S-A (Police Report by Det. Bowers, dated 9/13/76)). The 1978 homicide involvedthe killing of Carl C. He was reported missing from his home in South Gate, California. Carl C. waslast seen by his older brother. (See secondpetition exhibit S-A (Police Report by Det. Bowers, dated 9/13/76)). In the two years following the 1976killings, the police developed considerable evidence supporting the "two-killer" theory and pointing to a numberofpossible suspects. However, the police never charged any persons on these murder charges. Petitioner was never considered a suspect in these killings. This “two-killer" or “alternative suspect" evidence included: 1. the “positive identification" of Charles Lohmanas oneofthe killers; 2. statements of witnesses to whompotential suspects had confessed; 3. Scott F.'s brother’s statementthat the killings could not have been committed by a single killer, and his offer to testify against Nick Allikas, an older man who had had sexualrelations with the boys and who had been with them onthe day of the killings; and 4, evidence of sightings at the park of a motorcycle very different from petitioner's. (See second petition exhibit S-A). 116 However, the Bell Gardens Police withheld over 400 pages of exculpatory evidence concerning the 1976 homicides from the defense until six yearsafter the first trial and just two months before the second trial.'°* This is true even though the evidence regarded witnesses, other suspects, and basic factual information critical to solving the 1976 homicides. Had the exculpatory evidence been providedearlier, defense counsel would have been able to investigate the many other suspects and challenged the prosecution’s case.'° '4 To this day, the state has failed to release all of the exculpatory evidence concerning the 1976 homicides since much of the evidence was destroyed. Thestate’s misconduct was not limited to withholding exculpatory evidence. Thearresting officers did not entertain a subjective belief that petitioner was guilty of an offense and, even if they had, the circumstances knownto the officers failed to establish probable cause to arrest petitioner. This Court’s first decision reversed petitioner’s conviction and sentence based on police and prosecutor misconductattrial, including the withholding of relevant evidence on whetherpetitioner’s confessions were coerced. The material withheld was evidenceas to the records of misconduct of the investigating officers. This Court concludedthat withholding that evidence wasprejudicial both as to the admissibility of the confessions and asto theirreliability, assuming they were admitted. (Memro I, supra, 38 Cal.3d at 684). Shortly before this Court’s decision reversing the conviction, the City of South Gate destroyed the evidence that wasthe subject of the court's pending decision. Consequently, petitioner was unable to obtain the evidence on which the court had reversed his conviction and sentence of death. Thus, Mr. Reno was notable to use this evidenceto provethat his arrest was unconstitutionalor that his confession was involuntary. (See secondpetition, at 104 (Claim 19 (The Prosecution Violated Petitioner's Rights by Failing to Disclose Approximately 400 Pages of Discovery)). '05 Moreover, given that lingering doubt was an important mitigation issue, a more thorough and timely investigation of the information in the discovery materials would have provided the jury the necessary evidence to 117 For example,trial counsel would have learnedthat Suspect One, of whom a composite sketch wascreated and circulated, had been seen at the park on the night ofthe killings by witnesses Jose Feliciano, Scott Bushea and Mary Bushea. They all saw Suspect One at the park in the weekprior to the night of the murder. Jose Feliciano and Scott Bushea saw both suspects fishing at the park earlier that week. Audie Cullison was fishing with Scott F. on the Wednesday before the murders. At that time, Suspect One approached,spoketo them,and then stoodandstared at Scott F. for about five minutes before finally walking away. Suspect One was described as having sandy blond, shoulder length hair, with a conspicuous scar across his right cheek. He was seen wearing an army jacket on the night ofthe killing. (See secondpetition, exhibit S-A, Interview of Jose Feliciano by Det. Gossett, dated 7/26/76). When Jose Feliciano and his friend Scott Bushea were at the park earlier that week they saw both suspects. Trial counsel also would have learned that Suspect Twoarrivedat the park wearing a brownjacket and riding a motorcycle. Suspect Two spoke with Scott Bushea. Suspect Two wasdescribed as having brown and wavy hair, being slightly chubby and possibly Hispanic. (See second petition, exhibit S-A, Police Report by Det. Bowers, dated 9/13/76). makea fair and reliable determination of penalty. (See second petition,at 239 (Claim 63 (The Trial Court Erred in Refusing a Lingering Doubt Instruction at the Penalty Phase); and 368 (Claim 110 (Trial Counsel Rendered Ineffective Assistance in Failing to Argue Lingering Doubt)). 118 Neither suspects’ description resemble petitioner. Petitioner has dark hair and no scars on either cheek. His police booking slip in 1978 stated that no scars were visible. “Marks, scars and deformities: n/v". A 1972 arrest report only lists “Fu Man Chu mustache" and nothing under ‘marks and scars.’ Moreover, unlike Suspect Two,petitioner is not Hispanic. (See secondpetition, at 298). However, despite possession of some of the evidence,trial counsel never attempted to show the jury that petitioner wasactually innocent. Here, trial counsel's ineffectiveness and the trial court's errors carry immense"risk of convicting an innocent person." (Sterling, supra, 63 Cal.2d at 487). This is especially true, where the murder of three boysis alleged, and the pressures to convict and obtain a death sentenceare dramatically increased. (See Samuel Gross, The Risks ofDeath: Why Erroneous Convictions are Common in Capital Cases (1996) 44 Buff. L. Rev. 469; and Hugo Bedau and Michael Radelet, Miscarriages ofJustice in Potentially Capital Cases (1987) 40 Stan. L. Rev. 21). The "refusal to consider a claim offactual innocence based on newly discovered evidence would be constitutionally suspect in [this] capital case." (Clark, supra, 5 Cal.4th at 796). This Court should considerpetitioner's claims of actual innocence, as well as, the other claims in his petition in order to avert a miscarriage ofjustice. 119 c. Petitioner's Death Sentence 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. To qualify a claim under this exception, petitioner must show that the picture painted by the evidenceattrial "differ[s] so greatly from his or her actual characteristics that [ ] no reasonable judge or jury would have imposed the death penalty had it been awareofthe defendant's true personality and characteristics." (Clark, supra, 5 Cal.4th at 798 n. 34). Here,petitioner demonstrates that counsel performed deficiently by failing to present mitigation evidence despite the wealth of readily available evidence in petitioner’s case. (See secondpetition exhibits 8 - CC). Had trial counsel performed effectively, "no reasonable judge orjury would have imposed the death penalty had it been aware of the defendant's true personality and characteristics." (Clark, supra, 5 Cal.4th at 798 n. 34). Whenit comes to the penalty phase ofa capitaltrial, “[iJt is imperative that all relevant mitigation information be unearthed for consideration." (Caro v. Calderon (9th Cir. 1999) 165 F.3d 1223, 1227). A criminal defendant may expectnotjust that his counsel will undertake those actions that a reasonably competent attorney would undertake, "but [as well] that before counsel undertakesto act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (citing Hall, supra, 30 Cal.3d at 426; People v. Frierson (1979) 25 Cal.3d 142, 166; and 120 Strickland, supra, 466 U.S. at 690-691).'°° “[C]ounsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to representhis client." (Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446, 1456-57 (emphasis omitted); see also Jennings v. Woodford (9th Cir. 2002) 290 F.3d 1006, 1014 (emphasis omitted) (“[A]ttorneys have considerablelatitude to make strategic decisions ... once they have gathered sufficient evidence upon whichto basetheir tactical choices."). “Counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must presentthose experts with information relevant to the conclusion of the expert." (Caro, supra, 165 F.3d at 1226). Respondent incorrectly arguesthat the profile portrayed of petitioner at the penalty phase wasnot “so grossly misleading and inaccurate that absent the error or omission no reasonable judge or jury would have imposed a sentence of death.” (Return, at 38 (citation omitted). Respondenterrs in concludingthat the fact that the prosecutor relied upon the "circumstances surroundingpetitioner's commission of the instant 16 Counsel's first duty is to investigate the facts of his client's case and to research the law applicable to those facts. Generally, the Sixth Amendmentandarticle I, section 15 require counsel's ‘diligence and active participation in the full and effective preparation ofhis client's case.’ Criminal defense attorneys have a “‘duty to investigate carefully all defenses of fact and of law that may be available to the defendant...” (Ledesma, supra, 43 Cal.3d at 222 (citing People v. Pope (1979) 23 Cal.3d 412, 424-425)). 121 offenses, as well as evidenceof [the] prior violent incident to which petitioner has confessed" determines this issue. (/d.) Trial counselutterly failed to present any possible evidence in mitigation to rebutthe prosecutions’s case or present a case in mitigation for petitioner during the penalty phase. Substantial evidence in mitigation was available and should have been presented. Petitioner lacked any adequate parental or familial role models. (Secondpetition, exhibit X, at 10). Petitioner's father was chronically drunk and addictedto pills. (See generally, secondpetition, exhibit S). Sadly, petitioner was physically, mentally, and sexually abused as a child. His father would routinely beat him. (See generally second Petition, exhibit X). Atthe age ofnine, petitioner was molested by a teacher, and then by a priest. (Second petition exhibit AA,at 12). In a desperate time, petitioner was forced to sell sexual favors for food. (See /d.). As an escape mechanism, Reno began using drugs in his teens and continued using drugs into adulthood. (d., at 1). Consequently, petitioner’s behavior reflected his dysfunctional surroundings. In 1972, at age 27, petitioner was confined to Atascadero State Hospital for an indefinite period of time after assaulting a young male acquaintance. At Atascadero, petitioner was diagnosed as having a sexual deviation. (See Diagnostic and Statistical Manual, Second Edition [DSM II], Sexual Deviations 302.0). Petitioner underwent treatment and rehabilitation for his disorder. When he wasreleased three years later, the state determined that he did not pose a harm to others. Petitioner later 122 sought readmission to Atascadero, which was denied. He tried to control his sexual impulses, but without professional help he relapsed. (Second petition exhibit X, at 23). At trial, none of this information was revealedto petitioner’s capital jury. Instead, trial counsel only presented the testimonyofpetitioner's youngestsister, Kathy Klabunde. Her testimony did not give the jury an adequate picture ofpetitioner's life. She was the youngest of the Memro siblings - so youngin fact that she could not rememberthe violent clashes petitioner and his brothers had with their father Earl. (RT 2956). Also troubling was hertestimony that her father was a "good man" who wasnot physically abusive- statements contrary to all the known evidence. (RT 2945). Effective counsel would have presented testimony demonstrating the true nature of petitioner's social history and abusive childhood. (See secondpetition, exhibits R-Z). Several witnesses would havetestified in petitioner's defense. The witnesses were capable of disclosing much evidence in mitigation, which wasnot presented to the jury. Each witness was availableto testify at trial, but was not contacted by trial counsel. The witnesses were not contacted by prior appellate or state habeas counsel. They were contactedfor thefirst time by current counsel, and their declarations were included,forthe first time, with the secondpetition. The critical witnesses, whose testimony was not adducedat petitioner’s penalty phase include: 1) Mary Memro,petitioner's aunt, would havetestified to the cruelty Earl, petitioner's father, inflicted on his family, as well as Alvina's 123 (petitioner's mother) cold relationship with her children. She described Earl as an alcoholic pill addict who could not hold a job. (Second petition exhibit S). 2) Floyd Ziolkowski, petitioner's maternal uncle, would have testified to petitioner's dysfunctional extended family and Earl's extreme alcohol addiction. (Second petition exhibit T). 3) Pam (Memro) Davis,petitioner's cousin, would havetestified that Earl was a violent alcoholic who drank six to twelve beers a day. She also wouldtestify to the savage beatings Earl used to give to his dogs, many of which hadto beputto sleep because they had become vicious. (Second petition exhibit W). 4) Donald Memro,petitioner's younger brother, would have testified to the beatings Earl used to inflict on his children. Earl beat all of his children. He beatpetitioner most severely. (Second petition exhibit X). Earl used to makepetitioner fight him in view ofthe rest of the family. The children were routinely pummeled into submission. (Second petition exhibit X at 13). Donald wasalso preparedto testify that he witnessed petitioner fall 15-18 feet from a tree, hit his head on a rock and lose consciousness,at the age of 12. Petitioner's parents refused to seek medical treatmentfor the injury andpetitioner's frequent and severe migraine headaches beganafter that injury. (Second petition exhibit X). 5) Dr. Gretchen White was preparedto testify regarding petitioner's behavioral changes following his head injury. Dr. White opined that Mr. Reno's loss of self control throughout his life was reasonably 124 attributable to the head injury resulting from the fall. In 1964, Mr. Reno received another head injury in a motorcycle accident. He developed extreme migraine headaches, which continued throughouthislife, sometimes confining him to the darkness of the basement for extended periods of time. (Second petition exhibit AA, at 12 and 23). 6) Jack Brunette, petitioner's cousin, would havetestified to the cruelty he witnessed Earl inflict on his wife in front of the young children. Earl would berate, taunt and "prey on her fears." (Second petition exhibit Y). Earl would psychologically terrorize petitioner's mother in front of the children, who as toddlers, would be subjected to her screams ofterror. (Secondpetition exhibit X at 8). 7) Nancy Brunette, Jack Brunette's wife, would havetestified that she could remember "wondering if Earl and Alvina lovedtheir children.” (See secondpetition exhibit Z); 8) Dr. George Woods would havetestified to petitioner's suicidal ideations and that as a result of petitioner's mental conditions he was not competent. (See second petition exhibit CC); and 9) Marjorie Hoisington, a family friend, would havetestified about the severe abuse perpetrated by Earl Memro onhis family. (See second petition, at 361 (Claim 109 (Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing PhaseofTrial)). The evidence presented in mitigation was woefully inadequate, and left the jury with an unfair and wholly negative view ofpetitioner. Had 125 counsel presented adequate mitigation, no reasonable judge or jury would have sentenced petitioner to death. (Clark, supra, 5 Cal. 4th at 759; see also Sawyer v. Whitley (1992) 505 U.S. 333 (discussing actual innocencein the context of a death sentence)). Moreover, this negative view ofpetitioner prejudiced him in the jury’s eyes, and allowedthejury to findthat petitioner harbored the required mental states of the charged offenses. Had the jury not received this distorted view, they would not have found the required mental state, and petitioner would have been found guilty, at most, of lesser-included offenses. Petitioner’s claims satisfy these standards and should be heard on their merits.'©’ "(Where the record showsthat counsel has failed to research the law or investigate the facts in the mannerof a diligent and conscientious advocate, the conviction should be reversed since the defendant has been deprived of adequate assistance of counsel." (Pope, supra, 23 Cal.3d at 425-26 (citing People v. McDowell (1968) 69 Cal.2d 737). Here,trial '0? See second petition, at 355 (Claim 107: Petitioner was Denied his Right to the Assistance of Counsel as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses); second petition, at 358 (Claim 108: Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence); secondpetition, at 361 (Claim 109: Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phaseof Trial); second petition, at 368 (Claim 110: Trial Counsel Rendered Ineffective Assistance in Failing to Argue the Concept of Lingering Doubt); and secondpetition, at 370 (Claim 111: Petitioner was Denied Effective Assistance of Counsel with Respect to David Schroeder's Testimony). 126 counsel “could not make a reasonedtactical decision aboutthetrial precisely because ‘counsel did not even know what evidence was available." (Silva v. Woodford (9th Cir. 2002) 279 F.3d 825, 847 (quoting Deutscher v. Whitley (9th Cir. 1989) 884 F.2d 1152, 1160 (vacated and remanded on other grounds); and California v. Salgado (1991) 500 U.S. 901). Moreover,“[t]he Constitution prohibits imposition of the death penalty without adequate consideration of factors which might evoke mercy." (Hendricks, supra, 70 F.3d at 1044 (quoting Deutscher, supra, 884 F.2d at 1161); see also Penry v. Lynaugh (1989) 492 U.S. 302, 319). Here, counsel presented a single penalty phase mitigation witness who provided contradictory and hollow testimony. Counselthen presented petitioner’s testimony wherein he asked the jury to sentence him to death. (RT 2969). That is not a meaningful, nor constitutional, penalty phase. Accordingly, this Court may consider the merits of petitioner's penalty phase claims.’ Hadtrial counsel conducted reasonable investigation and submitted all evidence in mitigation at petitioner’s capitaltrial, the profile painted of 18 Additionally, this Court may consider the claims premised on failure to present mitigating evidence as independent claimsoferror and is able to review them for their merit. (See Clark, 5 Cal.4th at 797 (“Since this court is not limited, as the federal courts are, to granting relief only on the basis of constitutional error, we may also entertain claims that mitigating evidence that was not presented to the jury warrants relief from a judgment imposing the death penalty. Therefore, if the petitioner can demonstrate that the evidence would havesoradically altered the profile of the petitioner that no reasonable judge or jury would have sentenced the petitioner to death, this claim too will be considered notwithstanding the petitioner's failure to justify delay or presentation in a successive petition.")). 127 petitioner would have “differed so greatly from his actual characteristics that the [C]ourt would besatisfied that no reasonable judgeorjury would have imposed the death penalty had it been awareofthe defendant's true personality and characteristics." (Clark, supra, 5 Cal.4th at 798 n. 34). Based onthe entire record, the evidence presented by petitioner here demonstrates that he fits "within this exception." (Contra return, at 38). This Court should considerall of the claimsrelated to ineffective assistance of counselin petitioner’s case. d. Petitioner's Capital Convictions and Death Sentence Were imposed Under Several Invalid Statutes. Respondent wrongly concludes that noneofpetitioner's claims "implicate the exception for conviction or sentencing under an invalid statute." (Return at 38 (citations omitted)). Respondentalsoerrs in claiming that this Court already has decided petitioner's constitutional challenges during his direct appeal. (/d.). Challenges to the validity of a statute may be raised at any time. (Clark, supra, 5 Cal.4th at 765 (citing Ex Parte Bell (1942) 19 Cal.2d 488, 493)). “The importance of securing a correct determination on the question of constitutionality" of a statute warrants departure from the usual procedural limits. (Clark, supra, 5 Cal.4th at 765, n. 4 ("For that reason these claims have not beensubject to either the rules requiring justification for delay or exhaustion of appellate remedies.") (citing Jn re Berry (1968) 68 Cal.2d 137, 145; In re Zerbe (1964) 60 Cal.2d 666, 667-668; and Dixon, supra, 41 Cal.2d at 762)). In fact, often habeas corpus is the only remedy 128 available by which challenges to statutes may beraised. Petitioner has raised twelve (12) non-repetitive claims challenging the validity of the California death penalty statutes.'"” These claims may be considered on the merits despite having been raised for the first time in the secondpetition and despite a finding of untimely filing. Together, these claims makeclear that petitioner's capital convictions andcapital sentence were imposed under several statutes that are invalid and violate the state and federal Constitutions or International Law and Custom. 19 See secondpetition, at 452 (Claim 128: The 1977 Death Penalty Statute, on its Face and as Applied, is Unconstitutionally Vague Arbitrary, and Capricious); secondpetition at 453 (Claim 129: Many Features of the California Capital Sentencing Schemeas Interpreted by the State Courts and Appliedat Petitioner's Trial Violate the Federal Constitution); second petition, at 458 (Claim 130: Failure to Narrow the Class of Offenders Eligible for the Death Penalty and Imposition of Death in a Capricious and Arbitrary Manner); secondpetition, at 480 (Claim 131: The Unconstitutional Use of Lethal Injection Renders Petitioner's Death SentenceIllegal); secondpetition, at 490 (Claim 132: Execution of Petitioner after Prolonged Confinement Violates the Eighth Amendment Prohibition of Cruel and Unusual Punishment); secondpetition, at 494 (Claim 133: Application of the Death Penalty Violates International Law Underthe United States's Treaty Obligations); second petition, at 502 (Claim 134: Application of the Death Penalty Violates Customary International Law); second petition, at 505 (Claim 135: Petitioner's Death Sentence is Arbitrary Under International Law); secondpetition, at 507 (Claim 136: Petitioner Has A Right To Be Free From Cruel, Inhuman or Degrading Treatment); secondpetition, at 510 (Claim 137: Petitioner's Conviction and Sentence Violate His Right to Due Process); second petition, at 513 (Claim 138: Petitioner's Right to be Tried Before an Impartial Tribunal was Violated by Death Qualification Procedures); and secondpetition, at 515 (Claim 139: Petitioner Has a Right to Litigate Violations of His Rights Before International Tribunals). 129 f 7. Petitioner's Petition and All of Petitioner's Claims Are not Barred As Untimely And May Be Reviewed By This Court. Petitioner has demonstrated that all of the claims in the second petition are timely and should not be dismissed pursuant to Clark, supra, 5 Cal.4th at 775. The repetitive claims are presumptively timely. The non- repetitive claims werefiled in the absence of substantial delay, or their delayed filing was justified by prior appellate and habeascounsel's ineffective assistance or other factors beyondpetitioner’s control. Moreover, each of the claims may be heard in order to avert a miscarriage ofjustice in this case. 130 B. PETITIONER HAS ALLEGED SPECIFIC AND SUFFICIENT FACTS PROVING THAT HIS REPETITIVE APPELLATE CLAIMS ARE COGNIZABLE. Respondenthasfailed to show that petitioner has abused the writ for “failure to allege sufficient facts indicating certain claims in the petition are cognizable despite having been raised and rejected on appeal." (Order To Show Cause- Issue #2) (citing Waltreus, supra, 62 Cal.2d at 225; and Harris, supra, 5 Cal.4th at 829-841). Respondentallegesthat petitioner has raised seventy (70) claims that were previously raised on direct appeal.''® Respondent is wrong; only forty-six (46) claims were raised in the opening brief on direct appeal.!" Respondentincludes non-repetitive appellate claims and repetitive habeas claimsin its count here, instead of addressing those claims as directed by 110 Respondentasserts that the following claims were previously raised on direct appeal: Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 15,16, 17, 18, 19, 24, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, 44, 45, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 70, 71, 73, 77, 80, 81, 83, 84, 91, 93, 96, 98, 112, 113, 131, 123, 125, 126, 127, 128, 129, 130, and 135. (Return, at 39). i Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 17, 19, 24, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 41, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 70, 73, 80, 81, 82, 112, 123, and 128, were brought as claims of error on direct appeal in petitioner's secondtrial. 131 this Court.'”? This Court has noted that "arguments [] rejected on appeal and habeas corpusordinarily cannot serve as a second appeal." Waltreus, supra, 62 Cal.2d at 225 (citation omitted). Accordingly, when a criminal defendantraises in a petition for a writ ofhabeas corpus an issue that wasraised and rejected on direct appeal, this court usually has denied the petition summarily, citing Waltreus, supra, 62 Cal.2d 218. (Harris, supra, 5 Cal.4th at 825). However, where a habeas corpuspetitioner's claim dependson facts that were not, and could not have been,placed in the record, the Waltreus rule does not apply, since the petitioner could not have raised the issue on direct appeal. (Harris, supra, 5 Cal.4th at 835 n. 8). Thus, "a defendant [] acts reasonably" by renewing anissue, previously denied on appeal, in a timely fashion on habeascorpusifthe claim meets an exception to the Waltreus bar. (Jd. at 829 n. 7). Respondentagreesthat this Court has noted several exceptionsto the Waltreus bar. (See return, at 39). Respondentfails to note all of the possible exceptions. A claim previously raised and rejected on direct appeal will be reviewed again by this Court when the petitioner has shown any one of the following facts: 12 Respondentincorrectly declares that the following twenty-five claims were previously raised on rejected on direct appeal in petitioner's case: Claims 12, 15, 16, 18, 36, 37, 44, 45, 71, 77, 83, 84, 91, 93, 96, 98, 113, 131, 123, 125, 126, 127, 129, 130, and 135. Respondentalso fails to note that claim 82 was previously raised in petitioner's direct appeal. 132 1. sufficientjustification for the issue's renewal on habeas corpus; 2. the claim is premised on newly discoveredor additional information that wasnotin the appellate record butcasts new light on the issue; 3. the claim collaterally attacks a judgment of conviction which has been obtained in violation of fundamental constitutional rights; 4, the judgment and sentence was rendered by a court wholly lacking jurisdiction over the case, 5. the defendant has been sentencedto an illegal sentence and the judgment may be corrected without redetermination of any facts; or 6. the claim is premised on a changein the law affecting the petitioner's case. (See Harris, supra, 5 Cal.4th at 825-841; and Robbins, supra, 18 Ca l.4th at 815 n. 34; and In re Winchester (1960) 53 Cal.2d 528, 532); Respondentincorrectly argues that petitioner "bears a heavy burden to demonstrate sufficient justification warranting review on habeas corp us of a claim that was already rejected on direct appeal." (Return, at 40 (no citation)). Respondent seeks to improperly "narrow"the cases that quali fy under the Waltreus exceptions. (Jd. (citation omitted)). Respondentalso erroneously alleges that petitioner has only "aver[ed] in conclusionary ter ms - but does not establish - that he qualifies under [the] [] Harris exceptions .” (Id. at 41 (citation omitted))."”” 113 Petitioner is not "unjustifiably attempting to rework old issues already decided by this Court on direct appeal." (Contra return, at 41). Nor is he putting “new clothes on claimsthat previously wore appellate garments." (Contraid.). He is asserting new potentially meritorious clai ms triggered by counsel’s review ofthe entire record. Thus, none of 133 As with all other procedural default exceptions, petitioner has the burden ofestablishing aprimafacie case that the Waltreus bar does not apply. While petitioner agrees that the exception applies in a few cases, respondenthas failed to show that petitioner's case is not one ofthosecases. In his petition, informal reply, and herein this traverse, petitioner has done much more than aver, in conclusory terms, that his repetitive appellate claims meet an exception under Waltreus. Petitioner has provideda factual basis establishing the exceptions under Waltreus. Respondent's rhetoric aside,it is the state that has failed to provide any specifics showing why and how petitioner's repetitive appellate claims do not meet a Waltreus exception. 1. ManyRepetitive Appellate Claims Are Premised on New Legal Theories And Are Exempt from the Waltreaus Bar. Waltreus will not bar review of "an issue previously rejected on direct appeal whenthere has been a change in the law affecting the petitioner." (Harris, supra, 5 CalAth at 841 (citing Terry, supra, 4 Cal.3d at 916; In re King (1970) 3 Cal.3d 226, 229 n. 2; and In re Jackson (1964) 61 Cal.2d 500)). Here, petitioner substantially altered fourteen (14) claims!!* that were previously raised and rejected on direct appeal in his petitioner's repetitive appellate claims should be denied under Waltreus. (Contra id.). ‘M4 Repetitive appellate claims that have been factually or legally altered since submission on direct appeal include: Claims8, 9, 27, 28, 30, 31, 33, 40, 41, 56, 63, 73, 81, and 112. (See traverse exhibit H (Declaration of Giannini,at 4). 134 case.'!5 This Court should accordingly review "5 See Claim 8 (citing Benton v. Maryland (1969) 395 U.S. 784; Blockburger v. United States (1932) 284 U.S. 299; Ashe v. Swenson (1970) 397 U.S. 436; United States v. Dixon (1993) 509 U.S. 688, 705; Brownv. Ohio (1977) 432 U.S. 161, 166-67 n. 6; People v. Asbury (1985) 173 Cal.App.3d 362; People v. McDonald (1984) 37 Cal.3d 384; Richardsonv. United States (1984) 468 U.S. 317, 325; Smallis v. Pennsylvania (1986) 478 U.S. 140, 142; United States v. Morrison (1976) 429 U.S. 1, 3; People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803; and Bullingtonv. Missouri (1981) 451 U.S. 430, 439); Claim 9 (citing Presnell v. Georgia (1978) 439 U.S. 15; and Ring v. Arizona (2002) 536 U.S. 584); Claim 27 (citing Williamson v. United States (9th Cir. 1962) 310 F.2d 192; Charlesv. United States (9th Cir. 1954) 215 F.2d 825; Witt v. United States (9th Cir. 1952) 196 F.2d 285; and United States v. Postma (1957) 242 F.2d 488); Claim 28 (citing CT 1 264, RT 302, and 386); Claim 30 (citing Kimmelman v. Morrison (1986) 477 U.S. 365) Claim 31 (citing Williams v. Superior Court (1984) 63 Cal.3d 441; People v. Thompson (1980) 27 Cal.3d 303; People v. Tassel (1984) 36 Cal.3d 77, 86; People v. Matson (1974) 13 Cal.3d 35, 41; Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1084; and United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 488); Claim 33 (Holloway v. Arkansas (1978) 435 U.S. 475; Geders v. United States (1976) A25 U.S. 80; Herring v. New York (1975) 422 U.S. 853; Argersingerv. Hamlin (1972) 407 U.S. 25; Gideon v. Wainwright (1963); 372 U.S. 335; Chandler v. Fretag (1954) 348 U.S. 3; Glasser v. United States (1942) 315 U.S. 60; Powell v. Alabama (1932) 287 U.S. 45; People v. Crandell (1988) 46 Cal. 3d 833; Crandell v. Bunnell (9" Cir. 1998) 144 F.3d 1213, 1216; Brown v. Craven (9" Cir. 1970) 424 F.2d 1166, 1170; Schell v. Witek (9th Cir. 2000) 218 F.3d 1017; Hudson v. Rushen, 686 F.2d 826; Wolffv. McDonnell (1974) 418 U.S. 539; Brown v. Vasquez (9th Cir. 1991) 952 F.2d 1164, 1167; People v. Stewart (1985) 171 Cal.App.3d 883; People v. Garcia (1991) 227 Cal.App.3d 1369; and People v. Walker (1993) 14 Cal.App.4th 1615); Claim 40(citing People v. Boyd (1979) 95 Cal-App.3d 577, 589; People v. Cavanaugh (1955) 44 Cal.2d 252, 268-269; and People v. Smith (1973) 33 Cal.App.3d 51, 69); Claim 41 (citing People v. Thomas (1978) 20 Cal.3d 457, 464; Tassel, supra, 36 Cal.3d at 83; Thompson, supra, 27 Cal.3d 303; Estelle v. McGuire (1991) 502 U.S.62; Jamaly. VanDeKamp (9th Cir. 1991) 926 F.2d 918, 919; Henry v. Estelle (9th Cir. 1993) 399 F.2d 3241; and 2 Jefferson, Cal. Evidence Bench Book(2d ed. 135 the merits of these claims and reconsiderits prior denial given the material changesin law; effective representation of the claims by current counsel; and the merits of the claims within the factual and legal context ofall the claims included within the secondpetition. 1982), § 33.6, 1211); Claim 56 (citing Ring, supra, 536 U.S.at 609; Spaziano, supra, 468 U.S. at 465; People v. Robertson (1989) 49 Cal.3d 18, 36; Hicks, supra, 447 U.S. at 346; and Singer v. United States (1965) 380 USS. 24); Claim 63 (citing Lockett v. Ohio (1978) 438 U.S. 586; Skipper v. South Carolina (1986) 476 U.S. 4; Gregg v. Georgia, 428 U.S. 153,189-190 (1976); People v. Thompson (1988) 45 Cal.3d 86; People v. Cox (1991) 53 Cal.3d 618; Wolffv. McDonnell (1974) 418 U.S. 539; Vitek v. Jones (1980) 445 U.S. 480; Hewitt v. Helms (1983) 459 U.S. 460; Hicks, supra, 447 US. 343; and Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295); Claim 73 (citing Spano v. New York (1959) 360 U.S. 315, 320-321; Berger v. United States, 295 U.S. 78, 85-88 (1935); People v. Bolton (1979) 23 Cal.3d 208, 213; Brooks v. Kemp (1th Cir. 1985) 762 F.2d 1383, 1399; Dardenv. Wainwright (1986) 477 U.S. 168, 181; and A.B.A. Standards for Criminal Justice, 2d Ed. (1982) §§3-1.1(b)©); Claim 81 (citing Lankford v. Idaho (1991) 500 U.S. 110, 127; Gardner v. Florida (1977) 430 US. 349, 362; and United States v. Chenaur (9th Cir. 1977) 552 F.2d 294); and Claim 112 (citing People v. Mattson (1990) 50 Cal.3d 826; People v. Harris (1984) 63 Cal.3d 63, 64; Duran v. Missouri (1979) 439 US. 357, 364; People v. Buford (1982) 132 Cal.App.3d 288, 299; and Kairys, et al., Jury Representativeness: A Mandate for Multiple Source Lists (1977) 56 Ca. L.Rev. 776, 790). 136 2. This Court should Reconsider the Denial of Petitioner's Record Based Claims of Error and the Procedural Dismissal of Petitioner's Claims Will Result in a Miscarriage of Justice. a. The Ineffective Assistance ofPetitioner's Prior Appellate Counsel Provides Sufficient Justification for Excusal of the Waltreus Bar In Light of the Additional Information - Supplied in the SecondPetition that Casts New Light on the Claims. This Court has previously found that a petitioner's right to effective assistance of counsel may be violated by the inadequate presentation of claims of error on appeal. (See Harris, supra, 5 Cal.4th at 834; Clark, supra, 5 Cal.4th at 780; see also Sanders, supra, 21 Cal.4th at 719; and Robbins, supra, 18 Cal.4th at 810). Under Douglas, supra, 372 U.S. 353 and Evitts, supra, 469 U.S. 387, 396,petitioner has a right to appointed counsel in his automatic appeal. (See also Coleman, supra, 501 U.S.at 755). Under Clark, petitioner has a right to assume that his appellate counsel was “competent and [] present[ed] all potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780). Here,petitioner’s appellate counsel provided ineffective assistance by failing to: 1) conduct a diligent review ofthe appellate record; 2) identify triggering facts in the trial record; 3) identify claims of error governed by controlling law; 4) investigate claims of error premised on triggering facts outside the record; and 5) include potentially meritorious appellate claims for relief within the opening brief on direct appeal. To the extent that the claims were previously available, it was constitutionally ineffective not to bring these claims during the appeal before this Court. 137 Evaluating petitioner’s claimsofineffective assistance of appellate counsel under Clark, it is reasonably probable that, but for the inadequate presentation of issues and omission ofissues by prior counsel, petitioner would have beenentitled to relief. (Clark, supra, 5 Cal.4th at 780). Counsel's failure to raise the many potentially meritorious claims "reflects a standard ofrepresentation falling below that to be expected from an attorney engagedin the representation of criminal defendants." (/d.; see traverse exhibit M (Declaration of Van Winkle, at 8-9). Petitioner was consequently denied his rights to due process, effective assistance of counsel and a fair and reliable sentencing determination in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendments. In addition, petitioner should not be penalized for court-appointed counsel’s ineffective assistance and each ofthe claims contained herein should be resolved on the merits. Here, appellate counsel wholly failed to include other potentially meritorious claimsoferror in the direct appeal, including a claim premised on cumulative error. These claims would have provided essential context to petitioner’ case and would have amplified and multiplied the claims oferror affecting his convictions and capital sentence. As a result, appellate counsel failed to conductsufficient legal and factual research to raise the omitted claims. (Harris, supra, 5 CalAth at 825). Several of petitioner's claims are premised on additional information that was not in the appellate record but casts new light on the issue. (Compare Robbins, supra, 18 138 Cal4th at 815 n. 34)."° Thus, each ofthe repetitive claims included in the second petition may nowbeheardby this Court. Accordingly, petitioner has demonstrated goodcauseandjustified renewal of the appellate claims in this second petition for writ of habeas corpus. b. Petitioner's Repetitive Appellate Claims Are Premised on Fundamental Constitutional Error. Also,petitioneris permitted to "renew a claim of fundamental constitutional error that has previously been rejected on appeal." (Harris, supra, 5 Cal.4th at 830). "Only where the claimed constitutional error is both clear and fundamental, andstrikes at the heart of the trial process, is an opportunity for a third chance at judicial review (trial, appeal, postappeal habeas corpus) justified.” (Ud. at 834 (citing Arizona v. Fulminante (1991) 499 U.S. 279, 309)). "The denial of a fair and impartial trial amounts to a denial of due process of law [citation] andis a miscarriage ofjustice within the meaning ofthat phrase as used in section 4,article VI, of the Constitution of this state." (Winchester, supra, 53 Cal.2d at 531 (citation omitted)). The petition must showthat “the defect so fatally infected the regularity of the trial and conviction asto violate the fundamental aspects of fairness and result in a miscarriage ofjustice." (/d. at 532 (citation omitted). In the secondpetition, petitioner hasraised fifteen (15) repetitive 16 See Claim 19 (Citing second petition exhibits G and H); Claim 68 (citing second petition exhibits CC and AA); and Claim 121 (citing second petition exhibits G, H, and M). 139 appellate claims premised on fundamental constitutional errors.!!7 Petitioner's wasillegally arrested, coerced into confessing to the crimes, and the police exacted anillegal search of his property in violation ofhis rights under the Fourth and Fifth Amendments.''* The repeated prosecutions of petitionerviolated his rights to be free from double jeopardy underthe Fifth Amendment.!” Petitioner's jury was partial and did not representa fair cross-section of the community in violation of the Sixth and Fourteenth Amendments.!”° Trial court errors violated petitioner’s constitutional rights to a speedytrial, cross-examine witnesses, utilize compulsory process,andto be found guilty, beyond a reasonable doubt, by an 47 See Claims: 1, 2, 3, 8, 9, 10, 17, 24, 28, 38, 62, 73, 80, 82, and 112. 18 See secondpetition, at 23 (Claim 1 (Petitioner's Arrest Was Unlawful)); 36 (Claim 2 (Petitioner's Alleged Confession to the South Gate Police was Coerced)); 49 (Claim 3 (The Search ofPetitioner's Residence was unlawful)); and 138 (Claim 28 (The Trial Court Erred in Failing to Dismiss the Information based Upon the Unlawful Seizure of Petitioner’s Privileged and Confidential Legal Materials)). 119 See secondpetition, at 58 (Claim 8 (Petitioner's Prosecution for First-Degree Murder on CountIII Violated the Prohibition against Double Jeopardy underthe State and Federal Constitutions)); 63 (Claim 9 (Petitioner's Prosecution on CountIII Violated Petitioner's Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments)); and 66 (Claim 10 (Petitioner was acquitted of felony-murder on CountIT] and retrying him underthat theory violated Double Jeopardy Principles)). !20 See secondpetition, at 371 (Claim 112 (Petitioner was Denied an Impartial Jury Drawn from a Fair Cross-Section of the Community)). 140 unanimousjury.!”! Prosecutorial and state misconduct wasalso rampant throughout petitioner’s trial and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.’ These claims are premised on errors and constitutional violationsthat struck at the heart of petitioner's capital trial and renderedthe proceedings fundamentally unfair. Additionally, petitioner has raised thirty-one (31) errors previously rejected on appeal that, when viewed cumulatively,also strike at the heart of petitioner's capitaltrial and rendered the proceedings fundamentally unfair.'??. Together and individually these "defect[s] so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness andresult in a miscarriage ofjustice." (Winchester, supra, 53 Cal.2d at 532). 21 See secondpetition, at 128 (Claim 24 (The Trial Court Violated Petitioner’s Right to a Speedy Trial and Due Process)); 180 (Claim 38 (The Trial Court Denied Petitioner his Right of Cross-Examination and to Present a Defense)); and 237 (Claim 62 (The Trial Court Erred in Instructing the Jury that there Must be Unanimous Agreementasto Penalty)). '2 See secondpetition, at 93 (Claim 17 (Failure to Provide Discovery of the Prior Citizen Complaints Against the Police Officers Denied Petitioner a Fundamentally Fair Trial)); 281 (Claim 80 (The Prosecutor Committed Misconduct by Cross-Examining Petitioner Regarding the Appellate Process)); and 286 (Claim 82 (The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument)). 123 See Claims 4, 5, 6, 19, 27, 29, 30, 31, 32, 33, 39, 40, 41, 47, 48, A9, 56, 57, 58, 59, 60, 61, 63, 65, 66, 67, 68, 70, 81, 123, and 128. 141 3. Inclusion of Petitioner's Repetitive Appellate Claimsin the SecondPetition Is Necessary To Present Petitioner's Claims of Cumulative Error and to Exhaust All of Petitioner's Claims For Relief. Petitioner has brought all the repetitive appellate claims in the second petition in order to help this Court review the totality of the circumstances affecting petitioner’s case when assessing his claims. It is well settled that claims cannot be evaluated in a vacuum, and must be assessed in the full context of a trial. (See e.g., Kyles v. Whitley (1995) 514 U.S. 419; United States v. Ortega (9th Cir. 1977) 561 F.2d 803; and United States v. McLister (9th Cir. 1979) 608 F.2d 785); and Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151 (citation omitted)) (“it is inappropriate to evaluate the quality or quantity of prejudice in a vacuum."). Moreover, cumulative error, and particularly claims of prosecutorial misconduct, Brady violations, and ineffective assistance of counsel, should be assessed together when determiningthe reliability of a capital verdict. (See generally John H. Blume & Christopher Seeds, Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, and Cumulative Harmless Error (2010) 95:4 Journal of Criminal Law & Criminology 1153). Likewise, even if this Court finds that none of the repetitive claims meet an exception under the Waltreusbar, it should nevertheless find that no abuse of the writ occurred here as the inclusionofthe repetitive claims was necessary to present Claims 140 - 143 and to ensure thatall claims are exhausted in orderto later prepare for his federal litigation should that be necessary. 142 Additionally, the inclusion of the repetitive appellate claimsis justified. These claims have been reasserted for several additional reasons. First, this Court may reconsiderits prior denial of the claims based onits discretionary power of review. Second, this Court should re-examineits prior denial of the claimsin the contextofthe facts and claims alleged in the secondpetition, which is more complete and detailed than the prior appellate and habeaspleadingsfiled in this Court. Third, the forty-six (46) claims have been brought to exhaust and present the cumulative error claims to this Court. Fourth, it is necessary to exhaust all claims in the federal petition including claims of cumulative error. Fifth, the forty-six (46) claims have beenraised to provide context so that this Court may better assess the prejudice stemming from the multitude of errors infecting petitioner's capital proceedings. Sixth, to provide context for this Court's determination as to whether prior appellate and habeas counsel performed ineffectively by failing to raise all potentially meritorious claims included within the secondpetition. Finally, fourteen (14) of the claims have been developed with additional case law sincetheir prior denial.’ (See traverse exhibit M (Declaration of Van Winkle, at 7). 24 Claims 8, 9, 15, 20, 27, 28, 30, 31, 33, 40, 41, 56, 63, 73, 81, 112, and 121. 143 C. PETITIONER HAS ALLEGED SPECIFIC AND SUFFICIENT FACTS PROVING THAT HIS NON- REPETITIVE APPELLATE CLAIMS ARE COGNIZABLE UNDER INRE DIXON. Respondenthasfailed to show thatpetitioner has abused the writ for “failure to allege sufficient facts indicating certain claims in the petition are cognizable despite the fact they could have been raised on appeal but were not." (Order to Show Cause- Issue #3) (citing Dixon, supra, 41 Cal.2d at 759; and Harris, supra, 5 Cal.4th at 829-841) Respondentincorrectly argues that the Dixon bar applies here and urges dismissal of forty-seven (47) of petitioner's claims. (See return,at 42).!5 Both respondent’s argument and countare flawed. Respondent incorrectly includes twenty (20) claims'”° in their count by adding repetitive appellate claims and habeas claims.'?’ 25 Respondent arguesthat the following claims are barred under Dixon: Claims 7, 11, 13, 14, 22, 23, 25, 26, 34, 35, 42, 43, 46, 50, 51, 52, 53, 54, 55, 64, 69, 72, 74, 75, 76, 78, 79, 82, 85, 88, 89, 90, 92, 95, 97, 99, 100, 101, 102, 103, 104, 105, 106, 107, 110, 111, 114, 115, 116, 117, 122, 124, 131, 133, 134, 140, and 143. "26 Respondent incorrectly includes within their count the following claims: Claim 7, 14, 25, 26, 46, 50, 51, 52, 53, 54, 55, 64, 69, 82, 88, 89, 90, 92, 95, 97, 99, 100, 102, 103, 104, 105, 106, 107, 110, 111, 114, 115, 122, 131, 133, 134, 140, and 143. Respondent fails to count the following claims that are appellate in nature but were not previously raised: Claims 12, 36, 37, 44, 45, 77, 83, 84, 125. "7 Per this Court’s Order, non-repetitive habeas claims should be discussed in Order to Show Cause Issue numberfive and nothere. 144 Petitioner has actually presented twenty-seven (27) non-repetitive appellate claims.'** None ofthe claims should be barred when evaluated underthe corollary to the Waltreus bar - the Dixon bar. (See Harris, supra , 5 Cal.4th at 825 n. 3): The generalrule is that habeas corpus cannotserveas a substitute for an appeal, and, in the absence of special circumstancesconstituting an excusefor failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgmentof conviction. (Dixon, supra, 41 Cal.2d at 759 (citations omitted)). The Dixon bar, however, is not absolute. Moreover, respondentfails to note all ofits exceptions. A claim will not be dismissed under Dixon when: 1. there are special circumstances constituting an excuse for failure to employthat remedy;'”° 2. the disputed claim is not based ona challenge to the validity of a statute;°° 3, the disputed claim is not based on ineffective assistance of trial counsel, even if the habeas corpusclaim is based solely upon the 28 Claims 11, 12, 13, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 101, 116, 117, 124, and 125 are claims pr emised on the record and werenotraised in a prior direct appeal. 129 See Dixon, supra, 41 Cal.2d at 759; see also Harris, supra, 5 Cal.4th at 829; In re Newbern (1960) 53 Cal.2d 786, 789-790; In re Osslo (1958) 51 Cal.2d 371, 376-377;In re Bine (1957) 47 Cal.2d 814, 817-18; In re Seeley (1946) 29 Cal.2d 294, 296. 130 See Clark, supra, 5 Cal4th at 765 n.4 (citing Dixon, supra, A] Cal.2d at 762). 145 appellate record;'*! or 4. the disputed claim meets any of the four exceptionsto the Waltreus bar as outlined in Harris, supra, 5 Cal.4th at 825 n.3.'° Additionally, when the Dixonbaris applied and, "[w]here the facts could have been, but were not, placed on the record, a potential claim for ineffective assistance of counsel may exist." (Harris, supra, 5 Cal.4th at 835 n. 8; see also Douglas, supra, 372 U.S. 353; Evitts, supra, 469 U.S.at 396; Coleman, supra, 501 U.S.at 755; and Murray, supra, 477 U.S.at 496). Effective assistance of appellate counsel requires competent counsel who, after conducting "investigation into specific facts known to counsel which could reasonably lead to a potentially meritorious [appellate] claim....", to present "all potentially meritorious claims." (Clark, 5 Cal.4th at 780, 784 (citations omitted) (emphasis added)). Ineffective assistance of appellate counsel may be shown where counsel inadequately presents or fails to present an issue thatis: one which would have entitled the petitionerto relief hadit been raised and adequately presented in the initial petition, and that counsel's failure to do so reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants. (Clark, supra, 5 CalAth at 780). Notoneofpetitioner's non-repetitive appellate claims should be 131 See Robbins, supra, 18 Cal.4th at 814 n. 34 (citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 267). 132 See also Robbins, supra, 18 Cal4th at 814 n. 34. 146 barred under Dixon, supra, 41 Cal.2d at 756.'” Alternatively, if this Court finds that the claims are barred under Dixon,it should also find that appellate counsel, in failing to allege the claimsdespite his possession of triggering facts, performedineffectively. A finding of ineffective assistance of prior counsel would allow this Court to review the merits of all the claims raised in the secondpetition. (Sanders, supra, 21 Cal.4th at 719). 1. Prior Appellate Counsel Performed Ineffectively By Failing to Include the Possibly Meritorious Record Based Claimsin Petitioner's Second Petition as Claims of Error in His Direct Appeal. Ineffective assistance of appellate counsel can serveas a basis for excusal of the Dixon bar. (See Clark, supra, 5 Cal.4th at 779; Sanders, supra, 21 Cal.4th at 719; Harris, supra, 5 Cal.4th at 832-33; and Dixon, supra, 4\ Cal.2d at 759). To qualify, prior appellate counsel must have performed deficiently andfailed to investigate potentially meritorious claims, despite counsel's possession oftriggering facts, or failed to develop identifiable and potentially meritorious claims and include them with the 13 Respondent argues that petitioner's non-repetitive appellate claims should be dismissed under Dixon. (Return, at 42). Respondentis wrong. Petitioner has presented "special circumstances that would rescue his case from the [Dixon bar]." (Contra id.). Petitioner denies that he has previously recognized that these claims "could have been presented on appeal becausethey are basedonthetrial record." (Id.). Petitioner admits that he has arguedthat these claims are cognizable dueto the ineffective assistance of appellate counsel. Respondentfails to note that petitioner has alleged that the non-repetitive appellate claimsare cognizable under other exceptions to Dixon, supra, 41 Cal.2d at 759. (See informalreply, at 15). 147 direct appeal. Petitioner must also show that the non-repetitive claim, not presented in the prior appeal, waspotentially meritorious. (See Clark, supra, 5 Cal.4th at 779; and Sanders, supra, 21 Cal.4th at 719). Respondenttries to limit the instances where ineffective assistance may serve as an exception to the Dixon bar. Respondent claimsthat thereis a "strong presumption"that prior appellate counsel performedeffectively. (Return, at 43). However, a determination of ineffective assistance is dependent upontherecord,petitioner's allegations and not presumptions. Petitioner is not "second guess[ing]" prior appellate counsel. (Contra Id.). Petitioner has shown that prior counsel committed "manifest miscalculation in deciding which issues to present from the myriad of possible claims." (Contraid. (citation omitted)). The hallmark of a good appellate attorney may be "theability to sift out the less meritorious claims,"(id. (citation omitted)) but here, petitioner's prior appellate counsel did not, as respondent argues, conduct reasonable investigation or conduct a "judicious selection of issues"(id. (citation omitted)) or properly "exercise discretion and present only the strongest claimsinstead of every conceivable claim." (/d., at 44 (citation omitted) (internal quotation omitted)). Instead, despite his possession oftriggering facts indicating the existence and materiality of the claims, prior appellate counsel failed to include several meritorious claims. (See traverse exhibits L and M (Declaration of Nolan,at 3-4; and Declaration of Van Winkle, at 5-7). Asa result, petitioner has been forced to include meritorious non-repetitive appellate claimsfor the first time in the secondpetition. (See /d.). 148 Petitioner has demonstrated that his appellate counsel performed ineffectively by failing to identify, investigate, and develop potentially méritorious appellate claims despite the suggestion of triggering facts in the record. Prior counsel has admitted so. (See traverse exhibit H and L (Declaration ofNolan, at 3-4). The non-repetitive appellate claimsin petitioner’s secondpetition are morethan potentially meritorious. Reasonably competent appellate counsel would not have failed to include these claims on direct appeal.'** (See Clark, supra, Cal.4th at 796 n. 31). (See traverse exhibit M (Declaration of Van Winkle,at 5-7). Respondentarguesthat appellate counsel "cannotbe faulted for not including claims on direct appeal that were waived or forfeited at the trial." (Return, at 44).'3° As to the repetitive claims, thisCourt disposed of them on the merits without invoking the contemporaneous objection rule. As to the non-repetitive claims, respondent has not shown how any ofthe claims are affected by the contemporaneous objection rule. Several exceptions to 4 Nor would competent habeas counsel notinclude the claims in a “petition filed in conjunction with the automatic appeal" (Clark, supra, Cal.4th at 796 n. 31) to demonstrate the ineffectiveness of appellate counsel. Here, however, petitioner's appellate and habeas counsel wasthe same attorney, and theythus failed to recognize their own ineffectiveness on direct appeal by identifying the potentially meritorious non-repetitive appellate claimsin the first state petition filed in 1995. '35 Respondentbelieves that this argumentjustifies appellate counsel's failure to raise claims: 13, 14, 22, 23, 35, 42, 43, 50, 51, 52, 53, 54, 55, 64, 72, 74, 75, 76, 78, 79, 82, 101, 114, 115, 116, 117, 119, and 124. Again however, respondent counts several claimsthat are repetitive claims or are habeas in nature. These claims include: 14, 50, 51, 52, 53, 54, 55, 64, 82, 114, and 115. 149 the contemporaneous objection rule exist and apply to the non-repetitive claims in this case.'*° Ifit is 136 California’s statutory law states a general rule that a verdict will not be set aside absent a timely and specific objection or motion concerning the erroneous admission of evidence. See Cal. Evid. Code § 353. However, several exceptionsto therule exist: 1) The contemporaneousobjection rule is “subject to the constitutional requirementthat a judgment must be reversed if anerror has resulted in a denial of due process of law." (Law Revision Commission Comments to Cal. Evid. Code § 35 (quoting People v. Matteson (1964) 61 Cal.2d 466, 469-70 (overruled by People v. Cahill (1993) 5 Cal.4th 479, 510 n.15)); but see In re Cameron (1968) 68 Cal.2d 487); 2) The contemporaneous objection rule may be waived in cases where reversal was compelled by introduction of inadmissible evidencethat forced defendant to surrenderhis federal constitutional right notto testify. (See People v. Cabrellis (1967) 251 Cal.App.2d 681, 685; People v. Bolinski (1968) 260 Cal.App.2d 705, 722; People v. Blanco (1992) 10 Cal.App.4th 1167, 1173; People v. Allen (1974) 41 Cal.App.3d 196, 201 n.1; People v. Norwood (1972) 26 Cal.App.3d 148, 152; People v. Bob (1946) 29 Cal.2d 321, 324-25; People v. Frank (1985) 38 Cal. 3d 711, 729 n. 3; and People v. Chambers (1964) 231 Cal.App.2d 23, 27-28); 3) The contemporaneous objection may be waived wherethe issue was not properly presented attrial butthetrial judge understoodit nonetheless. (See People v. Scott, 21 Cal.3d 284, 290 (1978); People v. Abbott (1956) 47 Cal.2d 362, 372); 4) The contemporaneousobjection rule may be excused where an objection would haveprovedfutile. (See People v. Turner (1990) 50 Cal.3d 668, 703; and People v. Carrillo (2004) 119 Cal.App.4th 94, 101); People v. Simon (1927) 80 Cal.App. 675, 678-79; People v. Alvarado (2006) 141 Cal.App.4th 1577, 158; and Peoplev. Abbaszadeh (2003) 106 Cal.App.4th 642, 646); 5) This Court may waive the contemporaneous objectionrule based onits discretion to review claims on their merits. See, e.g., People v. McLain (1988) 46 Cal.3d 97, 110; People v. Miranda (1987) 44 Cal.3d 57, 85; People v. Bruner(1995) 9 Cal.4th 1178, 1183 n.5; People v. Champion, 9 Cal.4th 879, 908 n. 6 (1995); People v. Fudge (1994) 7 Cal.4th 1075, 1106-07; People v. Pinholster (1992) 1 Cal.4th 865, 912; People v. Malone (1988) 47 Cal.3d 1, 38; McLain, supra, 46 Cal.3d at 110; Miranda, supra, 150 appellate counsel's duty to raise "all potentially meritorious claims,” then it is also their duty to provide evidencethat a potentially meritorious claim meets an exception to the contemporaneous objection rule. Here, appellate counsel failed to identify the non-repetitive claimslet alone consider application of the contemporaneousobjection rule. (See traverse exhibit L (Declaration of Nolan,at 3-4)). There is no evidence that prior appellate counsel reasonedthat the non-repetitive claims were not "potentially meritorious" since they did not come within an exception to that rule. (Contra return, at 44). In fact, prior counsel admits that seventy-one (71) ofthe claims are potentially meritorious. (Traverse exhibit L 44 Cal.3d at 85; People v. Crittenden (1994) 9 Cal.4th 83, 122 n. 4; and People v. Johnson (2006) 139 Cal.App.4th 1135, 1146 n. 11); 6) The contemporaneous objection rule may be excused when “special circumstances"exist. (See, e.g., People v. Flores (1968) 68 Cal.2d 563, 567; People v. Chavez (1980) 26 Cal.3d 334, 350 n.5; People v. Kitchens (1956) 46 Cal.2d 260, 262; People v. Johnson (1970) 5 Cal.App.3d 851, 863 (1970); and People v. Robinson (1965) 62 Cal.2d 889, 894); 7) The contemporaneous objection rule may be waived when reviewing violations of fundamental constitutional rights that must be expressly waived. (See People v. Saunders (1993) 5 Cal.4th 580, 589 n. 5; People v. Rodrigues (1994) 8 Cal. 4 1060, 1132; and People v. Vera (1997) 15 Cal. 4 269, 276); 8) The contemporaneous objection rule may be waived were the litigant raises a pure question of law presented on undisputed facts. (See Hale v. Morgan (1978) 22 Cal.3d 388, 394; and People v. Brown (1996) 42 Cal.App.4th 461, 471); and 9) The contemporaneous objection rule may be waived where ihe party uses a new legal argument on appeal but the argument involves the samefacts or legal standard as those assertedattrial. (See People v. Avila (2006) 38 Cal. 4th 491, 527 n.22). 151 (Declaration of Nolan, at 3-4)). There is no evidencethat prior appellate counsel would not haveraised the claims regardless of the contemporaneousobjection rule. In fact, appellate counsel admits that, had he identified the factual and legal bases ofthe claims, they would have been raised in the prior appeal. (U/d.). Moreover, appellate counsel performed ineffectively by failing to plead potentially meritorious claims, despite the contemporancous objection rule, in order to exhaust the claims and ensure federal review. Petitioner has not "failed to carry his burden of showingthat the attorneys who represented him on direct appeal performed below anobjective standard of reasonable competencein selecting which claims to makeon direct appeal." (Contra return, at 44; see traverse exhibit L (Declaration of Nolan,at 3-4), Petitioner has madespecific assertions of ineffective assistance of counsel. (Contra return, at 44). Petitioner's proffered justifications for now filing the record-based claims are adequate. (Contra id.). Every way aboutit, appellate counsel performed ineffectively in failing to plead the non- repetitive claims and makea case for waiver of the contemporaneous objection rule before this Court and the federal courts. (See traverse exhibit M (Declaration of Van Winkle, at 3-4 and8-9). Contrary to respondent's assertions,petitioner has established, that he was"actually prejudiced by prior counsel's omission ofthe claim|s]." (Return,at 44 (citation omitted)). He has notfailed his burden in this regard. (Contra id.). “Irrespective of the ultimate success of the petition [counsel] has the duty to conduct a reasonable investigation and to present 152 not just actually meritorious claims (an imponderable before adjudication), but all potentially meritorious claims." (Sanders, supra, 2.1 Cal.4th at 713). Petitioner's non-repetitive appellate claims are potentially meritorious and would have beenraised by effective appellate counsel. (See traverse exhibit M (Declaration of Van Winkle, at 5-7). Indeed, prior appellate counsel has admitted that he should have raised these claims, and would have, had he identified their factual and legal basis. (See traverse exhibit L (Declaration ofNolan, 3-4). Appellate counsel's failure to perform his duties materially affected petitioner's chance ofrelief and his presentation of meritorious claims that undermine his capital conviction and sentence. (See Clark, supra, 5 Cal.4th at 780; see also Sanders, supra, 21 Cal.4th at 719; and Robbins, supra, 18 Cal.4th at 810). He has accordingly demonstrated ineffective assistance of appellate counsel. 2. Procedural Dismissal of Petitioner's Claims Under Dixon Will Result in a Miscarriage of Justice. Claims pass the Dixon bar when they meet any of the four exceptions outlined in Harris, supra, 5 Cal4th at 825 n. 3, or they challenge the validity of a statute. (See also Robbins, supra, 18 Cal.4th at 814 n. 34). Thus, exempted claims include: 1. those premised on fundamental constitutional error that strikes at the heart of the trial process; 2. the judgment and sentence was rendered by a court wholly lacking jurisdiction over the case; 3. the defendant has been sentencedto an illegal sentence and the judgment maybe corrected within redetermination of any facts; 153 4. the claim is premised on "a change in the law affecting the petitioner"; and 5. challengesto the validity of a statute may beraisedat any time. (See Harris, supra, 5 Cal.4th at 826-41; and Clark, supra, 5 Cal.4th at 775 (citing Bell, supra, 19 Cal.2d at 493)). Petitioner's non-repetitive appellate claims involve fundamental constitutional violations, and claims challenging the validity of several statutes. They are thus cognizable. Respondent wrongly asserts that petitioner has "in conclusory terms" argued that his claims meet these exceptions. (Return, at 45). Respondent seeks to limit the constitutional violations that qualify as "fundamental" and "strik[ing] at the heart of the trial process." (/d., (citation omitted)). To do so, respondent creates a new test, without legal foundation, that would limit the exceptionsapplication to claims involving "errors which can never be harmless." (/d.). In respondent's view, only the complete denial of counsel would qualify under the state's test for fundamental constitutional violations. (d.). Alternatively, respondent incorrectly argues that not one ofpetitioner's asserted claimsoferror "fall within the boundariesof errors that are both clear and fundamental [ ] and [ ] whichstrike at the heart ofthe trial process." (/d.). In the secondpetition, petitioner included eighteen (18) non- repetitive appellate claims premised on fundamentalconstitutional error.'?7 137 See Claims 11, 12, 13, 42, 43, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 116, 117, and 124. 154 (See Harris, supra, 5 Cal.4th at 826-836). These claimsallege violations of petitioner's constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Without these alleged errors no reasonable juror would have foundpetitioner guilty or sentenced him to the punishment of death. Additionally, when the non-repetitive appellate claims are viewed together, cumulatively the errors strike at the heart of the trial.’"° 3. Inclusion of Petitioner's Non-Repetitive Appellate Claimsin the Second Petition Is Necessary To Present Petitioner's Claims of Cumulative Error and to Exhaust All Claims For Relief. Petitioner has broughtall the non-repetitive appellate claims in the secondpetition in order to present "all potentially meritorious claims," (Clark, supra, 5 Cal.4th at 780), and to allow this Court to view thetotality of errors whenassessingpetitioner's claims. Claims cannot be evaluated in a vacuum, and must be assessedin the full context of the trial. (See e.g., Kyles, supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785); and Garcia, supra, 163 Cal.App.3d at 151). Certainly, cumulative error, and prosecutorial misconduct Brady violations and ineffective assistance of counsel, claims must be assessed together when determiningthe reliability of a capital verdict. (See generally Blume & Seeds, supra, 95:4 Jour. Criminal Law & Criminologyat 1153). Accordingly, even if this Court finds that none ofthe non-repetitive claims meet an exception under the Dixon bar,it should nevertheless find that no abuse of the writ occurred here as the inclusion of the non-repetitive 38 See Claims 22, 23, 34, 35, 36, 37, 44, and 101. 155 appellate claims was necessary to present Claims 140 - 143 andto exhaust all claims for petitioner's federal petition. (See traverse exhibit M (Declaration of Van Winkle, at 3-4 and 8-9). 156 D. PETITIONER HAS ALLEGED SPECIFIC AND SUFFICIENT FACTS PROVING THAT HIS REPETITIVE HABEAS CLAIMS ARE COGNIZABLE. ae eR Respondent hasfailed to show that petitioner has abused the writ for “failure to allege sufficient facts indicating certain claims in the petition are cognizable despite having been raised and rejected in petitioner's first habeas corpus proceeding, Jn re Memro on Habeas Corpus, 8044437, petition denied June 28, 1995." (Order To Show Cause - Issue #4) (citing In re Miller (14941) 17 Cal.2d 734, 735). Respondenterroneously argues thatthirty-eight (3 8) claims should be barred under Waltreus since they were raised earlier. (Return, at 47).'” Petitioner's first petition filed in 1995 only included twelve (12) claims. Petitioner has only repeated twelve (12) claimsin the secondpetition." Respondent concedes as much,later, when it notes that prior habeas counsel “presented only 12 claims." (Return, at 64). '39 Respondent arguesthat the following claims “are repetitious, in that [petitioner] presented them to this Court in hisfirst petition: Claims 5, 7, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 29, 30, 34, 36, 37, 63, 69, 86, 89, 90, 93, 94, 100, 101, 102, 104, 107, 108, 109, 110, 118, 120, 121, 122, 127, and 140." (Return, at 47). Respondentincorrectly counts Claims5, 17, 24, 29, 30, 34, 36, 37, 63, 69, 86, 90, 93, 94, 100, 101, 102, 104, 107, 108, 109, 110, 118, 120, 127, and 140. 149 The repetitive habeas claims include: Claims7, 15, 16, 18, 19, 20, 21, 25, 26, 30, 121, and 122. 157 This Court has recognized that successive petitions are necessary, "subject to undefined exceptions and that the court may be willing to entertain multiple collateral attacks on a judgmentnot withstanding the potential for abusive writ practice." (Clark, supra, 5 Cal.4th at 768). Here, as in Sanders, petitioner has brought a successive petition in order to correct errors made by prior court appointed appellate and habeas counsel. (Sanders, supra, 2\ Cal.4th at 719). Petitioner recognizes that repetitive claims are not cognizable unless exempted from dismissal under the Waltreus bar. (See Harris, supra, 5 Cal. Ath at 826). The Waltreus rule holds "that in the absence ofstrong justification, any issue that was actually raised and rejected on appeal cannot be renewedin petition for a writ of habeas corpus." (/d. at 829 (emphasis omitted)). The Waltreus bar is not absolute and, as outlined above, a repetitive habeas claim is exempted from dismissalif petitioner has shown: 1. sufficient justification for the claim's renewal on habeas corpus; 2. the claim is premised on newly discoveredor additional information that wasnot in the appellate record butcasts new light on the issue; 3. the claim is premised on fundamental constitutionalerror that strikes at the heart of the trial process; 4. the judgment and sentence was rendered by a court wholly lacking jurisdiction overthe case; 5. the defendant has been sentencedto an illegal sentence and the judgment may be corrected without redetermination of any facts; or 158 6. the claim is premised on a changein the law affecting the petitioner's case. (Harris, supra, 5 Cal.4th at 825-841; and Robbins, supra, 18 Cal.4th at 815 n. 34; and Miller, supra, 17 Cal.2d at 735 (“a successivepetitioner will be denied unless petitioner has demonstrated a “change in the facts or the law substantially affecting the rights of the petitioner ...."). Contrary to respondent's wishes, petitioner's claims are not barred under Waltreus simply because “[t]his is the second timepetitioner has collaterally attacked his 1987 conviction in this court." (Return, at 46). Each ofpetitioner's repetitive habeas claims meet an exception underthe Waltreus bar and are cognizable. The repetitive habeas claims were not filed “in derogation of this Court’s policy to deny an application for habeas corpus that is based upon the same grounds urgedin a priorpetition that was denied on the merits." (Contra id., at 46). Respondentasserts that petitioner's repetitive habeas claims are barred "not because they are being denied on the same grounds on which they were previouslyrejected, but because this Court [should invoke] a proceduralbar to their reconsideration.” (Return, at 47 (citing In re Lynch (1972) 8 Cal.3d 410, 439 n. 26)). Respondent's citation to Lynch does nothing to support the state's point. There, this Court declined to consider the merits of a repetitive habeas claim since the contention had "been raised in several prior applications for habeas corpusbypetitioner, each of which we have denied. Accordingly, it does not require our reconsideration." (Lynch, supra, 8 Cal.3d at 439 n. 26 (citing Miller, supra, 17 Cal.2d at 735) (emphasis added)). Thus, the Court in Lynch declined to reconsiderits prior denials of the claim. 159 However, there, contrary to respondent's assertion (see return, at 47), this Court did not utilize the Waltreus bar to erect a separate procedural bar to the claims it previously denied on the merits. (See Lynch, supra,8 Cal.3d at 439).'" Further, Mr. Lynch hadfiled "several prior applications for habeas corpus" while petitioner has only filed one prior petition. (/d. at 426 n. 29). The second petition wasfiled based on prior counsel's failureto file an effective petition in 1995, while in Lynch the petitioner provided no additionaljustifications for his successive filings besides the violation of his constitutional rights. U/d.). Respondent argues that petitioner “bears a heavy burden" to show that his repetitive habeas claims may be heard by this Court. (Return,at 47). Not so, the burden only requires petitioner to make a primafacie showingthat his claims meet an exception to the Waltreus bar. (Harris, supra, Cal.4th at 841-42). Respondent wrongly argues that petitioner has concededthat none of his claims meet the Waltreus exception. (See /d.). Petitioner has made no such concession and has made the appropriate allegations to exempthis repetitive habeas claims from procedural dismissal. Here, petitioner has met his burden and can showthat each ofhis '41 Moreover, the federal courts have recognized that when this Court denies a claim by citing Waltreus, it is not erecting a separate procedural basis to preclude review ofthe claim, but merely indicating that the merits of the claim have been reviewed and denied before. (See Ylst, supra, 501 U.S. at 805). Indeed, this is why the federal courts have developed the “ook through doctrine” in cases involvingcitation to Waltreus, to review the prior determination on the merits despite the Waltreus dismissal. (d.). The Waltreus bar thus essentially, confirms exhaustion of the claim. (Ud). 160 repetitive habeas claims should be heard by this Court and resolved on the merits. 1. This Court Should Reconsider Its Prior Denial Of Petitioner's Repetitive Habeas Claims Dueto Material Changesin the Law. The Waltreus bar will not bar review of "[a claim or] an issue previously rejected on direct appeal whenthere has been a change in the law affecting the petitioner." (Harris, supra, 5 Cal.4th at 841 (citing Terry, supra, 4 Cal.3d at 916; King, supra, 3 Cal.3dat 229 n. 2; and Jackson, supra, 61 Cal.2d 500)). Petitioner has significantly developed the legal and factual bases for three claims previously raisedin the first petition.'” Accordingly, this Court is free to review the merits of these claims. '2 See second petition, at 88 (Claim 15: (Petitioner's Rights were violated by the Prosecutions’ Use of Perjurious Jailhouse Snitches (citing secondpetition, exhibits B, C, and E)); 117 (Claim 20 (The Prosecution Violated Petitioner's Rights by Withholding Brady Evidence Regarding Benefits Paid to Jailhouse Snitches who Testified at Pretrial Hearing (citing Banks v. Dretke (2004) 540 U.S. 668, 692; Giglio v. United States (1972) 405 U.S. 150, 153; Mooney v. Holohan (1935) 294 U.S. 103, 112; Berger, supra, 295 U.S.at 88; Strickler, supra, 527 U.S. at 284. n. 14; Bracyv. Gramley (1997) 520 U.S. 899, 909; United States v. Chemical Foundation, Inc. (1926) 272 U.S. 1, 14-15; Kyles, supra, 514 U.S. at 439-440; Bagley, supra, 473 U.S. at 675 n. 6; and Olmstead v. United States (1928) 277 U.S. 438, 484)); and 430 (Claim 121 (Petitioner was Deprived ofa Fair and Accurate Guilt and Penalty Phase Due to Lack of Available Material Evidence(citing second petition exhibit M)). 161 2. This Court should reconsider Its Prior Denial Of Petitioner's Repetitive Habeas Claims Due to The Ineffective Assistance of Prior Habeas Counsel. Counselhasthe duty, after conducting reasonable investigation into readily identifiable triggering facts, of competently presentingall “notentially meritorious claims" where aprimafacie case of error can be made. (Clark, supra, 5 Cal.4th at 780). Failure to do so constitutes ineffective assistance of counseljustifying resubmission of successive and delayedpetitions. (Sanders, supra, 21 Cal.4th at 819). It will also constitute good cause for reconsideration of the previous denial of the claims on the merits. (Clark, supra, 5 Cal.4th at 780). Here, petitioner timely submitted his petition and claims of ineffective assistance of prior habeas counsel. (Contra return, at 30). He arguesthat his right to effective assistance of counsel was violated by the materially deficient performance ofhis prior habéas counsel. Petitioner previously asserted that "[t]o the extent that meritorious claims were not raised in petitioner's appeal andinitial habeas petition, petitioner was deprivedof his federal and state constitutional rights to effective assistance of appellate and habeas counsel." (Secondpetition,at 21). In total, petitioner's prior habeas counsel failed to conducta diligent review ofthe appellate record, failed to present potentially meritorious appellate claims not presented by appellate counsel, and failed to present a claim of ineffective assistance of prior appellate counsel. Prior habeas counsel failed to identify triggering facts in the trial record and failed to identify triggering facts and material evidence outside the record. Prior 162 habeas counsel failed to conductreasonable investigation into potentially meritorious claims based on triggering facts in their possession. Ultimately, prior habeas counsel failed to include forty-nine (49) non-repetitive and potentially meritorious habeas claimsraised for the first time in the second petition. (See traverse exhibit L (Declaration of Nolan, at 3-4). Thus, this Court should reconsiderits denial of the twelve (12) repetitive habeas claims. Thefailure of prior counsel to perform these duties materially affected petitioner's chanceofrelief, or presentation ofa meritorious issue undermining his capital conviction or sentence. Thus, he has stated a case for ineffective assistance of counsel. (See Clark, supra, 5 Cal.4th at 780; see also Sanders, 21 Cal.4th at 719; and Robbins, supra, 18 Cal.4th at 810). Had counselpresented therepetitive claims with all the "notentially meritorious claims" lodgedin the secondpetition, petitioner would have likely earned favorable relief. However, prior habeas counsel failed to identify triggering facts in his possession,failed to investigate potentially meritorious claims, failed to competently present meritorious claims and ultimately failed petitioner. Becauseprior habeas counsel performed ineffectively in violation of petitioner's constitutionalrights, this Court should find justification for reconsideration of the twelve (12) repetitive habeas claims. 163 3. This Court should reconsiderIts Prior Denial of Petitioner's Repetitive Habeas Claims Because The Procedural Dismissal of Petitioner's Claims Will Result in a Miscarriage of Justice. This Court should reconsiderits prior denial of petitioner’s twelve (12) repetitive habeas claimsbecausetheir denial will result in a miscarriage ofjustice. Respondent wrongly arguesthat petitioner “has not alleged, much less demonstrated, that the trial court lacked jurisdiction or acted in excessofits jurisdiction or that the law has changed with regard to a particular claim that was previously rejected." (Return, at 47). Petitioner has set forth persuasivejustification for reconsideration of this Court’s prior denial and has demonstrated that each claim qualifies under an applicable miscarriage ofjustice exception. Petitioner has done more than makethe “mere assertion that one has been denied a ‘fundamental’ constitutional right." (Contra return,at 48 (citing Harris, supra, 5 Cal.4th at 834). Petitioner has not made conclusory allegations, but has instead presented well reasoned and substantiated claims of error. (Contra return, at 48). Petitioner’s claims are “well- founded" in both fact and law. (Contra id.). The claims presented here “strike at the heart of the trial process." (Harris, supra, 5 Cal.4th at 834). This is true both individually and cumulatively. Petitioner has alleged four repetitive habeas claims'*’ premised on fundamentalerrors stemming from the withholding of evidence;the falsification of evidence, and the lack of 13 See Claims 20, 21, 121, and 122. 164 material evidence ofpetitioner's guilt.'“*_ These errors alleged strike at the heart of the trial process and occurred in violation of petitioner's fundamentalrights. Respondent's argumentthat fundamental constitutional errors are “narrower than ordinary reversible error which results in a miscarriage of justice” is wrong. By limiting fundamentalerrors to “only errors which can never be harmless," respondent seeks to limit the application ofthis exception to incidents only involving the “complete denial of counsel." (See return, at 48 (citing Gideon, supra, 372 U.S. 335)). Moreover, petitioner was denied the effective assistanceoftrial, appellate, and habeas counsel; and has thus suffered a complete denialof his right to effective assistance of counsel as guaranteed by the California and United States Constitutions. 4, Inclusion of Petitioner's Repetitive Habeas Claimsin the Second Petition Is Necessary To Present Petitioner's Claims of Cumulative Error and to Exhaust All of Petitioner's Claims For Relief. Petitioner has brought the repetitive habeas claims in the second petition in orderto allow this Court to view the totality of the circumstances 4 See secondpetition, at 117 (Claim 20 (The Prosecution Violated Petitioner's Rights by Withholding Brady Evidence Regarding Benefits Paid to Jailhouse Snitches who Testified at Pretrial Hearing)); 120 (Claim 21 (The Prosecution Violated Petitioner's Rights by Failing to Disclose Exculpatory Evidence in Discovery Regarding the Prior Felony Convictions and Probationary Status of Prosecution Witness Scott Bushea)); 430 (Claim 121 (Petitioner was Deprived of a Fair and Accurate Guilt and Penalty Phase Due to Lack of Available Material Evidence)); and 436 (Claim 122: Petitioner was Deprived of his Constitutional Rights as a Result of Falsification of Sgt. Carter's Alleged Interrogation Notes)). 165 in assessing petitioner's claims. Claims cannot be evaluated in a vacuum, and must be assessed in the full context of trial. (See e.g., Kyles, supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785; and Garcia, supra, 163 Cal.App.3d at 151). Cumulative error, and particularly claims ofBrady violations and ineffective assistance of counsel, should be assessed together when determining thereliability of a capital verdict. (See generally Blume & Seeds, supra, 95:4 Jour. Criminal Law & Criminology at 1153). Likewise, even if this Court finds that none of the repetitive habeas claims meet an exception under the Waltreus bar, it should nevertheless find that no abuse of the writ occurred here. The inclusion of the (12) repetitive habeasclaimsis justified. First, this Court may reconsiderits prior denial of the claims based on its discretionary power of review. Second,this Court should re-examineits prior denial of the claims in the context of the facts and claimsallegedin the second petition, which is more complete and detailed than the prior habeas pleadings filed in this Court. Third, the twelve (12) claims have been brought to exhaust and present the cumulative error claims to this Court. Fourth, it is necessary to exhaustall claims in the federal petition including claims of cumulative error. Fifth, the twelve (12) claims have been raised to provide context so that this Court may better assess the prejudice stemming from the multitude of errors infecting petitioner's capital proceedings. Sixth, to provide context for this Court's determination as to whether prior appellate and habeas counsel performed ineffectively by failing to raise all potentially meritorious claims included 166 within the secondpetition. Finally, three of the claims have been developed with additional case law since their prior denial. (See traverse exhibit M (Declaration of Van Winkle, at 7). 167 E. PETITIONER HAS ALLEGED SPECIFIC AND SUFFICIENT FACTS THAT JUSTIFY THE FILING OF HIS SUCCESSIVE PETITION AND PROVE THAT HIS NON-REPETITIVE HABEAS CLAIMS ARE COGNIZABLE. ok Respondenthasfailed to show thatpetitioner has abused the writ for “failure to allege sufficient facts indicating certain claims in the petition are cognizable despite the fact they could have been raised in the first petition." (Order to Show Cause- Issue #5) (Clark, supra, 5 Cal.4th at 774-775; and Horowitz supra, 33 Cal.2d at 546-547). Respondent contendsthat petitioner has presented “new grounds based on matters knownto the petitionerat the time of previouscollateral attacks upon the judgment.” (Return,at 49 (citing Horowitz, supra, 33 Cal.2d at 546-47). Respondent incorrectly asserts that fifty-one (51) claims are barred onthis ground. (Return,at 49).Actually, fifty-two ($2) non- 14 Respondentasserts that the following claims are procedurally barred since they are “successive,andthere isno justification for not including them in the first habeas petition, since they arise from facts apparentin the trial and appellate record: Claims 11, 13, 14, 22, 23, 35, 42, 43, 46, 50, 51, 52, 53, 54, 55, 64, 72, 74, 75, 76, 78, 79, 82, 85, 88, 92, 95, 97, 99, 103, 105, 106, 111, 114, 115, 116, 117, 123, 124, 130, 131, 133, 134, 135, 136, 137, 138, 139, 140, 141, and 143." (Return,at 49). Respondentincorrectly includesin its count, Claims 11, 13, 22, 23, 35, 42, 43, 50, 51, 52, 53, 54, 55, 64, 72, 74, 75, 76, 78, 79, 82, 92, 116, 117, 123, and 124. Again respondent double counts claims by including, as non- repetitive and habeas based,claimsthe state previously deemed to be repetitive or appellate in nature. However, respondentfails to note some claimsthat are non-repetitive and habeas in nature including claims: 69,71, 168 repetitive claims should be considered here,'*° and none should be barred. Respondentarguesthat this Court's precedent bars thefiling of successive petitions in their entirety. (See return, at 48 (“Repetitious successivepetitions are not permitted.") (citing Clark supra, 5 Cal.4th at 775)). To the contrary, this Court has created a separate successivenessbar, but has not outlawed successivepetitions in toto. Such a restriction would be "unprecedented" (see Clark, supra, 5 Cal.4th at 795 n. 30), and would violate the habeas corpus clause of the California Constitution. (See /d. at 764 n. 2 (quoting Cal. Con. Art. I, § 1). Petitioner’s claims are not procedurally barred because he has “return[ed] to this Court for habeas corpusrelief nine years after his first habeas corpus petition was denied on the merits." (Return, at 49). While the time period is long, there has been no substantial delay in the filing of the petition and, alternatively, petitioner has justified any delay. Petitioner’s prior habeas counsel performed ineffectively in failing to present the non-repetitive habeasclaimsin thefirst petition. Current counsel filed the secondpetition seventeen (17) monthsaftertheir appointmentby this Court. Petitioner’s current counsel are the first counsel 86, 87, 89, 90, 91, 93, 94, 96, 98, 100, 102, 104, 107, 108, 109, 110, 113, 119, 120, 126, 127, 128, 129, 132, and 142. 146 The non-repetitive habeasclaims include: Claims14,46, 69, 71, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 119, 120, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143. 169 in his case to provide competentrepresentationby,after identifying all triggering facts and reasonably investigating all claimsoferror, presenting all "potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780). 1. Petitioner Has Justified the Filing of His Successive Petition. This Court has stated that claims presented in a “subsequent”petition that should have beenpresentedin an earlier filed petition will be barred as “successive” unless the petitioner “adequately explain[s]"(see return,at 55), his or her failure to presentall claimsin theearlierfiled petition. (See Horowitz, supra, 33 Cal.2d at 540, 547; and Clark, supra, 5 Cal.4th at 768, 776, 782). In accordance with this Court's requirements, petitioner has justified the filing of his secondpetition based on appellate and prior habeas counsel's ineffective assistance. The successiveness bar has not been strictly or regularly adheredto in the past. (See Clark, supra, 5 Cal.4th at 768; and Robbins, supra, 18 Cal.4th at 788 n. 9). Nevertheless: [blefore considering the merits of a second or successive petition, a California court will first ask whetherthe failure to present the claims underlying the new petitionin a prior petition has been adequately explained, and whether that explanation justifies the piecemeal representation of the petitioner's claims. (Clark, supra, 5 Cal.4th at 774). This Court will also consider a claim raised in a successive petition if the petitioner demonstrates that the claim meets a miscarriage ofjustice exception. (Ud. at 790). Here,petitioner has provided “satisfactory reasons"for not presenting his non-repetitive claimsin the first petition (contra return, at 55), and hasjustified having to resort to a successivepetition for “remedy 170 of appeal." (Shipp, supra, 62 Cal.2d at 553). Appellate and prior habeas counselfailed to identify triggering facts, failed to conduct a reasonable investigation into claimsoferror, and failed to include in petitioner's direct appealorfirst petition potentially meritorious grounds. Thereby, prior counsel provided ineffective assistance of counsel. (Sanders, supra, 21 Cal.4th at 719). Petitioner Reno could not have previously discovered the meritorious claims oferror included in the secondpetition, since prior counsel ineffectively failed to identify the claims or inform petitioner as to their legal basis. (See Clark, supra, 5 Cal.4th at 775; see also traverse exhibits L and K (Declaration of Nolan,at 3-4; and Declaration of Reno,at 1-2)). Nineof the non-repetitive habeas claims included within the second petition are premised on “newly discovered evidence [that] undermines the prosecution’s entire case." (Clark, supra, 5 Cal.4th at 766).'*" The claims allege errors that are fundamental in nature. This is true whether they 148 regard state misconductin the form of withheld evidence;'™ the ineffective 47 See Claim 71 (citing second petition exhibits F-K); Claim 90 (citing secondpetition exhibit K); Claim 91 (citing second petition exhibits D and F); Claim 98 (citing secondpetition exhibit BB); Claim 102 (citing secondpetition exhibit P); Claim 108 (citing secondpetition exhibits M - X); Claim 109 (citing second petition exhibits S - AA); Claim 119 (citing second petition exhibit CC); and Claim 120 (citing secondpetition exhibit AA). 48 See secondpetition, at 256 (Claim 71 (The Prosecutor Committed Misconduct in Violation of Petitioner’s Constitutional Rights in Failing to Disclose Impeachment Evidence Regarding Jailhouse Snitch Anthony Cornejo)). 171 assistanceoftrial counsel;"? or petitioner's incompetenceto stand trial.' Petitioner's current counsel have exhibited “due diligence” by thoroughly investigating all potentially meritorious claimsforrelief, identifying all potentially meritorioustriggering facts, and presenting the secondpetition as quickly as reasonably possible. (See Clark, supra, 5 Cal.4th at 775). In less than two and a half years from appointment, current counsel identified, investigated, developed, and presented one-hundred- forty-three (143) claims. Eighty-seven (87) of those claims were identified, investigated, and developed for thefirst time. All one-hundred-forty-three (143) potentially meritorious claims were refined, verified, and further developedfor final presentation to this Court. Counselalso established a 149 See second petition, at 309 (Claim 90 (Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Regarding the Alleged Penal ‘Code § 288 Violation)); 313 (Claim 91 (Trial Counsel Rendered Ineffective Assistance When HeFailed to Impeach Cornejo Based on Favors Regularly Conferred upon Him in Exchange for His Testimony));, 331 (Claim 98 (Petitioner's Right to Effective Assistance of Counsel was Violated as a Result of Counsel's Failure to Conduct an Adequate Voir Dire)); 337 (Claim 102 (Trial Counsel Rendered Ineffective Assistance By Failing to Impeach Dr. Choi with his Preliminary Hearing Testimony)); 358 (Claim 108 (Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence)); and 361 (Claim 109: (Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phase of Trial)). ‘50 See secondpetition, at 417 (Claim 119 (Petitioner was Mentally Incompetent to Stand Trial)); and 422 (Claim 120 (Petitioner Was Deprived of His Right of Access to and Assistance of Competent Mental Health Experts, in Violation ofAke v. Oklahoma)). 172 - working relationship with the client, reviewed the claims with the client, and researched developments in the law. All this was conducted within the time that this Court would typically grant for investigation and development of a petition for writ of habeas corpusin a capital case following appointment of habeas counsel. (See Supreme Court Policies Regarding Cases Arising from Judgments of Death, std. 1-1.1). Respondent argues that in no circumstance should procedural bars be excused becausepetitioner "is ‘innocent of the charged crimeoffirst degree murder and the special circumstance and the resulting death sentence." (Return, at 55 (citation omitted)). Respondent arguesthat petitioner has "barely alleged, but certainly has not shown,that the ‘newly discovered, irrefutable evidence of innocenceofthe offense’ or degree of offense was such that it would ‘undermine the entire prosecution case and point unerringly to innocence or reduced culpability.’" (/d. at 56 (citing Gonzalez, supra, 51 Cal.3d at 1246). Respondent is wrong; included within the second petition are claims premisedontrial errors of constitutional dimension that “carr[y] with [them] a risk of convicting an innocent person." (Sterling, supra, 63 Cal.2d at 487). Petitioner has done more than proffer evidence "that merely raises a reasonable doubtas to guilt or that a reasonable jury could haverejected..." (Contra return, at 56). In Claims 86 and 87, petitioner proffered substantive evidence of his innocencethatpriortrial, appellate, and habeas 173 counsel hadfailed to identify, investigate or develop.'”' Petitioner submitted several exhibits to this Court that demonstrate he is actually innocent ofthe crimes.'” Petitioner has submitted mental health evidence relative to his claims of reduced culpability. (See second petition exhibits X - CC). Moreover, petitionerhas shown that prior counsel failed to develop and present substantial evidence in mitigation. Petitioner's evidence does morethanrelate "only to an issue already disputed attrial," and does much more than "conflict with trial evidence...." (Contra Jd., at 56 (citations omitted)). Petitioner has met his burden by submitting "evidence of innocencethat could not have been, and presently cannot be, refuted." 51 The evidence includes indications that fourteen (14) other suspects were identified by police as the likely culprits of the 1976 killings. Throughoutthe police investigation, a multitude of alternate suspects emerged, and trial counsel could havereadily identified and located these facts. Trial counsel rendered ineffective assistance of counselin failing to conduct an independentinvestigation and present evidence regarding the alternate suspects. There was nostrategic reason for counselnot to investigate and bring up these alternate suspects. Counsel's failure to do so violated petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights. Likewise, there was no strategic reason for prior appellate and habeas counsel not to identify and present the evidence. 132 Defense counsel failed to investigate and present evidencethat could have been obtained as a result of leads contained in the discovery materials including, but not limited to, evidence that two other individuals were involved in the actual killings, neither ofwhom waspetitioner. (See second petition exhibits G and H). Hadtrial counsel investigated and presented this evidence,it is reasonably probablethat the outcome would have been different at the guilt and penalty phases hadthis failure not occurred. 174 (Clark, supra, 5 Cal.4th at 798 n. 33).'°° Contrary to respondent's assertions, the foregoing establishes that "petitioner has alleged [] facts demonstrating a fundamental miscarriage of justice so as to permit consideration of the claims on the merits." (Return, at 57). Petitioner has addressed "the limited exceptions set forth by this Court to decide whetherthe merits of an unjustified successive and untimely petition should be considered." (/d.). Accordingly, petitioner's claims are not barred, may be considered on the merits, and should not "be denied as successive." (d.). Respondent wrongly arguesthat only "false or perjured evidence may create a distorted or ‘grossly misleading profile.’" (Return, at 57 (citation omitted)). Perjured testimony maycause a "orossly misleading profile” of petitioner during the penalty phase. (See Clark, supra, 5 Cal.4th at 798 n. 34). However, there is no requirementthat petitioner must present evidenceofperjury at his trial to show that the jury was presented with a “srossly misleading profile" during the penalty phase dueto other errors by 153 Petitioner did not receive funding from this Court for the investigation that led to the developmentofhis actual innocence claims, since those claims were developed in a successivepetition. To this end,in his secondpetition, petitioner requested funding for further investigative services. (See secondpetition, at 520-21). Since an order to show cause was issuedin his case, petitioner will file a confidential motion for ancillary funding in conjunction with his traverse and will move for discovery in accordance with the rights attachedto the issuance of an order to show cause in his case. Petitioner's prior claim rested upon a primafacia case of his innocence and reducedculpability. When andif further evidence of petitioner's innocenceis established through investigation and discovery, the allegations in his second petition and traverse will be supplemented. 175 trial counsel, the prosecutor, or the trial court. (Contra return, at 57 (citation omitted)). Besides, petitioner has claimed that the state submitted false and perjurious evidence during the trial that led to a "grossly misleadingprofile.” (Contra id.).'™* Finally, contrary to respondent's arguments,petitioner has done more than merely show that "accurate evidence" was submitted at his penalty phase. (Contra Clark, supra, 5 Cal.4th at 798 n. 34). Likewise, petitioner has done more than argue "that the evidence presented at the penalty phase was ‘inadequate’.” (Contra return, at 57 (citation omitted)). Petitioner has demonstrated that trial counsel did not submit any real evidence in mitigation. Respondent thus wrongly concludesthat it is not "debatable whether a reasonable jury would have voted for death if presented with the additional evidence of mitigation." (/d. at 57). 2. Petitioner’s Prior Habeas Counsel Performed Ineffectively By Failing To Investigate the Triggering Facts Underlying the Meritorious Non- Repetitive Claims Presented In Petitioner’ Successive HabeasPetition. Respondent recognizes that in some circumstances "consideration may be given to a claim that prior habeas counsel did not competently represent a petitioner." (Return, at 52 (citing Clark, supra, 5 Cal.4th at 154 See second petition, at 88 (Claim 15: Petitioner's Rights were violated by the Prosecutions’ Use of Perjurious Jailhouse Snitches); second petition, at 92 (Claim 16: Petitioner's Rights were Violated by the False and Perjurious Testimony of Anthony Cornejo); and second petition, at 253 (Claim 69: The Prosecution's Presentation of Facts was Directly Contrary to Those Contained in the Missing-Juvenile Report). 176 779)). Here, petitioner has alleged with specificity that prior counsel failed to identify, investigate, develop, and file the non-repetitive habeas claims and that prior counsel's representation fell below that to be expected from a reasonably competentcapital defense attorney. (/d. at 780). Petitioner has also shownthat the non-repetitive claims presented in the second petition "would have entitled petitioner to relief" if raised in the prior habeas petition. (Id.). Respondentcorrectly notes that petitioner's current counsel discovered the non-repetitive claims after being appointedto petitioner's case by the federal court. (Return at 52). Respondenterroneously argues that this fact is "irrelevant to whether the merits of claims raised for the first time in a successive petition should be entertained." (Return, at 52 (citations and emphasis omitted)). In fact, it is demonstrative of when petitioner became aware ofthe potentially meritorious claims omitted by his prior ineffective counsel and when current counsel began investigating the case. (See generally traverse exhibits H,I, J, and K (Declarationsof Giannini, Thomson, Stetler, and Reno). All of these considerations are necessary to resolve whether any ofpetitioner’s claims are barred under /n re Dixon. Petitioner has done more than suggest that his prior state habeas corpus counsel was ineffective. (See return, at 51; and see generally traverse exhibits L and M (Declarations ofNolan and Van Winkle). Respondentinsists that "petitioner's assertions ofineffective assistance of habeas corpus counsel are not specific, [and that] his proffered justification 177 for filing successive claims in a second habeas corpuspetitionis inadequate." (/d.). Respondentincorrectly alleges that petitioner has sought to establish ineffective assistance by arguing that his prior counsel "mere[ly] omitted" the non-repetitiveclaims. Respondent alleges, without recourse to proof, that prior counsel performed effectively by not conducting "an ‘unfocused investigation’ to uncover 'any possible factual basis for collateral attack" and by not venturing "into areas of questionable merit." (/d. at 53 (emphasis,citations, and internal quotations omitted)). Respondentinsists that petitioner's allegations are "conclusory" and "fail to make the requisite showing.” (/d. at 54). Respondent wrongly accuses petitioner of attacking the competency of prior counsel's performance using: nothing more than theability ofpresent counsel with the benefit ofhindsight, additional time and investigate services, and newly retained experts, to demonstrate that a different or better defense could have been mounted had trial counsel or prior habeas corpus counsel had similar advantages. (Return, at 54 (quoting Clark, supra, 5 Cal.4th at 780)). Petitioner has proffered, with specificity, allegations of ineffective assistance of prior habeas counselthat rise above "conclusory allegations." (Contra return, at 54). Petitioner has not "suggest|ed] that the same appellate counsel whofailed to recognize the claims in thefirst instance could not be expected to recognize his own ineffectiveness for failing to spot the errors." (Ud. at 54). Respondent's paraphrasing lacks quotations and good sense. Moreover, respondent admits that several of petitioner's non-repetitive claims are premised on evidence outside the record, that prior 178 counsel admittedly failed to locate and develop.’ All of the non-repetitive habeas claims are premised ontriggering facts that wereeither in prior habeas counsel's possession or, though being readily identifiable, were not developed by prior habeas counsel. He performed deficiently by failing to identify triggering facts and cultivate potentially meritorious claims. (See Clark, supra, 5 Cal.4th at 780). Because many of the non-repetitive claims would have warranted relief had they "been raised and adequately presentedin the initial petition," prior habeas counsel's failure "to do so reflects a standard of representation falling below that to be expected from an attorney engagedin the representation of criminal defendants." (/d.; see also traverse exhibit M (Declaration of Van Winkle, at 8-9). Based on the evidence presented by petitioner in his petition, informalreply, and in this traverse, this Court should determine that petitioner’s prior habeas counsel performed ineffectively. (See generally traverse exhibit L and M (Declarations of Nolan and Van Winkle). Petitioner’s claims should be exempted from the Dixon and successiveness bars due to ineffective assistance of his prior habeas counsel. (Contra return, at 51). Accordingly, this Court should excuse the Dixonbar astoall non-repetitive habeas claims. '55 Ty this regard, respondent admits that the following claimsare based on evidence outside the record and not previously presented to this Court: Claims 71, 88, 91, 107, 108, 109, 119, 124, 127, 131, 133, 134, 135, 136, 137, 138, 139, 140, and 141. (Return, at 54). 179 3. The Predicate Facts For Each Claim Were Not KnownByPetitioner At the Time His Prior Habeas Counsel Filed the 1995 Petition. Respondent argues that“the predicate facts [of petitioner’s] new claims were knownor discoverable at the time he prepared andfiled his first habeas corpuspetition.” (Return, at 49). Respondentincorrectly asserts that petitioner’s non-repetitive habeas claims “are based on facts which were knownto him orhis attorneys, or were available and discoverable by him orhis attorneys, at the time of the earlier habeas corpuspetition." (/d.). First, the legal basis and facts underlying the claims were not known by petitioner. (See traverse exhibit K (Declaration of Reno,at 1-2). None of the non-repetitive habeas claims are premised on facts known by petitioner during thepriorlitigation, since petitioner’s appellate and prior habeas attorney ineffectively communicated with petitioner, failed to identify critical triggering facts, and failed to competently presentall potentially meritorious legal claims. (See traverse exhibit K (Declaration of Reno,at 2). Second,the legal and factual bases for the claims could and should have been identified and developed by his prior counsel. (See traverse exhibit L and M (Declaration of Nolan, at 5; and Declaration of Van Winkle, at 5-7). Petitioner is not a capital habeas lawyer and cannot be expected to understand and be versedin this arcane legal field. (See Alarcon, supra, 80 S. Cal. L. Rev. 697) (discussing the complexity of capital habeaslitigation). He has indicated that he was not aware of the legal and factual basis of any of the non-repetitive claims, even though the events occurredprior to or 180 during his trial. (See traverse exhibit K (Declaration of Reno,at 2 -3). He did not become awareofthe underlying factual andlegal bases for the claims until his current counsel completed a draft version ofhis sec ond petition in April 2003, and at that point a primafacie case had not b een made as to many of the claims. (See /d.; and traverse exhibit J (Dec laration of Stetler, at 3-4). He has thus shownthat the second petition was t imely raised after he became awareofthe claims and counsel could finish all the claims in the secondpetition. Moreover, if respondent is correct in asserting that “every single new claim presented herein could have been presented in the first habeas corpus petition," (id.) then respondent’ s arguments provethat petitioner’s prior counsel was ineffective in fai ling to identify, research, investigate, and present the many meritorious c laims presented in the secondpetition. 4, The Procedural Dismissal of Petitioner’s Non- Repetitive Habeas Claims Will Result ina Miscarriage of Justice. A claim is exempt from the Dixon bar when it meets any of the four exceptions outlined in Harris, supra, 5 Cal.4th at 825 n. 3. (See also Robbins, supra, 18 CalAth at 814 n. 34). Additionally, challenges to the validity of a statute may beraised at any time. (Clark, supra, 5 Cal.4t h at 775 (citing Bell, supra, 19 Cal.2d at 493). Likewise, claims premis ed onthe ineffective assistance oftrial counsel may be broughtat any time. (Robbins, supra, 18 Cal.4th at 815 n. 34 ("We do not apply [Waltre us and Dixon] barsto claims of ineffective assistance oftrial counsel, eveni fthe habeas corpusclaim is based solely upon the appellate record") (citat ions 181 omitted)). In the secondpetition, informal reply,andthis traverse, petitioner has demonstrated that his non-repetitive habeas claims should be reviewed because they meet one of these exceptions. Respondentaccusespetitioner of stating "in conclusory terms,that all his claims are meritorious and demonstrate that a fundamental miscarriage ofjustice occurred.” (Return, at 55 (internal quotations omitted) (citation omitted)). Respondent argues thatpetitioner does not actually “demonstrate that he qualifies under one of [the Clark or Harris] exceptions.” (See Jd. (emphasis omitted)). Respondent argues that petitioner has "failed to adequately explain andjustify his [ ] failure to raise the above-listed claims in a prior habeas corpuspetition, his claims are thus barred." (/d.). Lastly, respondent contendsthat "petitioner has failed to allege facts demonstrating a fundamental miscarriage ofjustice." (Id.). Respondenterrs in all respects. Each ofpetitioner's non-repetitive habeas claims meet an exception under the Dixon bar and thus may be heard. Petitioner has demonstrated that dismissal of his non-repetitive habeas claims will result ina miscarriage ofjustice in a case involving actual innocence and reduced culpability. (Contra return, at 55). Petitioner has justified his filing of a successivepetition based onpriortrial, appellate, and habeas counsel's ineffective assistance. (Contra /d.). This Court is free to review each ofpetitioner's claims premised on ineffective assistance oftrial counsel. (Robbins, supra, 18 Cal.4th at 814 n. 34 (citing Mendoza Tello, supra, \5 Cal.4th at 267)). This is especially true 182 whereashere,petitioner's trial, appellate, and habeas counsel serially failed to present almost any of the readily identifiable and material mitigating evidencein petitioner's case. (See Clark, supra, 5 Cal.4th at 798). This Court may thus review the merits of each of the (28) non-repetitive habeas claimsthat are premised on the ineffective assistance oftrial counsel.’*° In short, dueto trial counsel's ineffectiveness, "the picture of [petitioner] painted by the evidenceattrial [] differ[ed] so greatly from his actual characteristics that...no reasonable judge or jury would have imposed the death penalty had it been aware ofthe defendant's true personality and characteristics." (Robbins, supra, 18 Cal.4th at 813). Regardingthe first exception to the Dixon bar, respondent argues that, “petitioner has not made a persuasive showingthat, absent the alleged constitutional violations, he would not have been convicted." (Return, at 56 (citation omitted)). Respondent is wrong. Fundamentalerrors "strike at the heart ofthe trial process..." (Harris, supra, 5 Cal.4th at 834 (citing Fulminante, supra, 499 U.S. at 309)). Such errors, if committed, would ensure that no reasonable juror would vote for conviction or a sentence of death. (/d.). Here, petitioner presented forty-two (42) non-repetitive habeas claims that include constitutional errors that are fundamental in nature.'*’ 156 Claims premised on the ineffective assistance of trial counsel include: Claims 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, and 140. ‘57 The non-repetitive habeas claims that are premised on fundamental errors include: Claims 14, 46, 69, 71, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 104, 105, 106, 107, 108, 183 Theseclaims are premisedon violations of petitioner’s constitutional rights underthe Fifth, Sixth, Eighth and Fourteenth Amendments andparallel provisions of the California Constitution. Petitioner has thus made a sufficient showing demonstrating that these errors struck at the core of the trial process andthat, in their absence, no reasonable juror would have convicted him or voted for a sentence of death. Petitioner further alleged several non-repetitive habeasclaimsthat the trial court lackedjurisdiction, or acted in excess ofjurisdiction, whenit sentenced him to the punishmentof death.'** These claims are premised on petitioner's right to be foundguilty, beyond a reasonable doubt, by a unanimous jury that agrees asto all elements ofthe capital offense and sentence. The claims are also based upon thefact that the trial court could not, under binding and controlling international law, sentence petitioner to death. Together these claims make clear that the sentence imposed upon petitioner may be "restrained or annulled if determined to be in excess of the court's powers as defined by constitutional provision,statute, or rules developed by courts." (Zerbe, supra, 60 Cal.2d at 667-68). Respondentincorrectly asserts that "[p]etitioner has not addressed the fourth exception under Clark, in which the petitioner was convicted underan invalid statute." (Return, at 57). In fact, petitioner has included 109, 110, 111, 112, 113, 114, 115, 119, 120, 127, 132, 137, 141, 142, and 143. 188 See Claims 133, 134, 135, 136, 137, 138, and 139. 184 several claims attacking the validity of California’s sentencing statutes.'” In sum,these claims makeclearthat petitioner's capital sentence was unlawfully imposed understatutes that violate the state and federal constitutions. Thus, this Court is free to also review the merits of these claims. (Clark, supra, Cal4th at 779; and Sanders, supra, 21 Cal.4th at 719). 5. Inclusion of Petitioner's Non-Repetitive Habeas Claimsin the Second Petition Is Necessary To Present Petitioner's Claims of Cumulative Error and to Exhaust All of Petitioner's Claims For Relief. Petitioner has brought all the non-repetitive appellate claims in the second petition in orderto present "all potentially meritorious claims," (Clark, supra, 5 Cal.4th at 780), and to allow this Court to view thetotality of errors whenassessingpetitioner's claims. Case law is clear that claims cannot be evaluated in a vacuum, and must be assessedin the full context of atrial. (See e.g., Kyles, supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785; and Garcia, supra, 163 Cal.App.3d at 151). Cumulative error, and particularly claims of Brady violations and ineffective assistance of counsel, should be assessed together when determiningthereliability of a capital verdict. (See generally, Blume & Seeds, supra, 95:4 Jour. Criminal Law & Criminology 1153). Accordingly, even if this Court finds that none of the non-repetitive habeas claims meet an exception under the Dixon bar, it should nevertheless find that no abuse 159 See Claims 128, 129, 130, and 131. 185 of the writ occurred here as the claims' inclusion in the secondpetition was necessary to present Claims 140 - 143 and to exhaustall the claims in petitioner's federal petition. (See traverse exhibit M (Declaration of Van Winkle, at 3-4 and 8-9). 186 F. PETITIONER’S INSUFFICIENCY OF THE EVIDENCE CLAIMS ARE COGNIZABLE. Respondenthasfailed to show that petitioner has abused the writ for “failure to allege sufficient facts indicating that claims of insufficient evidence at trial to support a conviction are cognizable in a petition for a writ of habeas corpus."(Orderto Show Cause- Issue #6) (Lindley, supra, 29 Cal.2d at 723). Respondent contends, and petitioner admits, that Claims 67 and 68 in the secondpetition address the insufficiency of the evidence used to sustain the first degree murder convictions. (See secondpetition, at 249 and 251). Claims 67 and 68 wererejected in petitioner's direct appeal, but are nevertheless exempt from the Waltreus bar. Respondentalsoerrs in arguing that these claims should be barred under Lindley, supra, 29 Cal.2d at 723, as they are "run-of-the-mill sufficiency-of-the-evidence claims...[and that petitioner has failed to demonstrate that they] are cognizable on habeas corpus." (Return,at 58). Petitioner recognizes that a "[p]ostconviction habeas corpus attack on the validity of a judgmentof conviction is limited to challenges based on newly discovered evidence, claims going to the jurisdiction of the court, and claims of constitutional dimension." (Clark, supra, 5 Cal.4th at 766-67 (citing Hall, supra, 30 Cal.3dat 420; and Bell, supra, 19 Cal.2d at 493-496). Nevertheless, this Court should consider petitioner's sufficiency 187 of evidence claims for a numberofreasons and should not deny the claims as "non-cognizable." (Contra return, at 58). Respondent correctly notes that in Claims 67 and68petitioner has not "claim{ed] that his convictions were based on perjuredor false evidence knowingly presented by the prosecutor." (Return, at 58). Petitioner has madethose allegations elsewhere,’® and in any event, those claims should be consideredin relation to Claims 67 and 68. Respondentincorrectly argues that petitioner has "ignore[d] the rule that sufficiency claimsare not cognizable on habeas...." (/d.). Respondenterrs in arguing that petitioner has made "no attempt whatsoever to explain to this Court whyit should disregard the procedural bar and addressthe claim." (/d.). First, the sufficiency of the evidencepresentedattrial is undoubtedly related to petitioner's claim of actual innocence. This is especially true whenthe sufficiency of evidence theory is considered "in light of the relevanceofthe violation to the correct determination of petitioner's guilt, the purpose of the constitutional principle involved, and the effect that granting the remedy would have on the administration of criminaljustice." (Sterling, supra, 63 Cal.2d at 487). Here, Justice Traynor's reasoning goes against the reasoning of leading current wrongful conviction studies 10 See second petition, at 88 (Claim 15: Petitioner's Rights were violated by the Prosecutions’ Use of Perjurious Jailhouse Snitches); second petition, at 92 (Claim 16: Petitioner's Rights were Violated by the False and Perjurious Testimony of Anthony Cornejo); and secondpetition, at 253 (Claim 69: The Prosecution's Presentation of Facts was Directly Contrary to Those Contained in the Missing-Juvenile Report). 188 indicating that insufficiency of the evidence, and lack of material evidence, is a significant cause andtrait of wrongful convictions. (See generally, Keith A. Findley, and Michael S. Scott, The Multiple Dimensions ofTunnel Vision in Criminal Cases (2006) Wis. L. Rev. 291; and Boaz Sangero, and Mordechai Halpert, Why a Conviction Should Not Be Based on a Single Piece ofEvidence: a Proposalfor Reform (2007) 48 Jurimetrics J. 43). Thus, the sufficiency of the evidence claimsarerelated to petitioner's other claimsalleging that he is actually innocent and the prosecution lacked material evidenceof his guilt.’ Second,the sufficiency of the evidence claims have beenpresented again here because prior appellate counsel ineffectually presented the claims on direct appeal. Appellate counselleft the claims hollow by failing to present twenty-seven (27) non-repetitive appellate claims included within petitioner’s secondpetition'® in addition to the insufficiency ofthe evidence claims. This fact bolsters the need to present the claims now and as part of a claim of cumulative error, or specifically; Claim 141 (Appellate Counsel] Committed Ineffective Assistance of Counsel). Third, the parties hadlitigated the contention at trial of whether there was sufficient evidence ofthe underlying felony. In its first opinion,this 161 The claimsrelative to petitioner’s actual innocence are Claims 64, 69, 72, 74, 78, 86, 87, 103, 104, 105, 107, 108, 115, 140, 141, 142, and 143. 16 Claims 11, 12, 13, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 101, 116, 117, 124, and 125 are claims premised on the record and werenotraised in a prior direct appeal. 189 Court stated: Onceinside, appellant took Carl Jr. into the bedroom, turned on “black strobe lights,” and sat down on the bed. The boy stood adjacent to the bed, watching the lights blink on and off. Suddenly, when Carl Jr. announced his departure, appellant became angry, grabbed the clothesline and strangled him. Although appellant confessed to binding Carl Jr.’s hands, he was unable to remember whetherhe tied the boy’s hands before strangling him, and no independent evidence established the timing ofthat act. Nospecific “plan” vis-a-vis Carl Jr. had been formulated. (Memro I, supra, 38 Cal.3d at 699). This was a factual finding by this Court, presumed correct under federal law. (See, e.g., 28 U.S.C. § 2254(e)(1)). Thus,the doctrines of res judicata andcollateral estoppel, in conjunction with double jeopardy principles, would operate to prevent the prosecution from relitigating the case in order to prove a different set of facts. (See e.g., Ashev. Swenson (1970) 397 U.S. 436). Likewise, this factual finding precludes a finding of premeditation and deliberation. This Court foundas much whenit noted that there was no evidence to establishthe timing of the acts. Without such evidence,there is insufficient evidence to find premeditation and deliberation. Thus, Memro J establishedthat there wasinsufficient evidence of premeditation. Fourth, and finally, petitioner has broughtthe insufficiency of the evidenceclaims in this secondpetition in order to allow this Court, in assessing all of petitioner's claims, to view thetotality of errors infecting petitioner’s trial. (See e.g., Kyles, supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785; and Garcia, supra, 163 190 Cal.App.3d at 151). Accordingly, even if this Court finds that Claims 67 and 68 do not meet an exception under the Waltreus or Sterling bars,it should nevertheless find that no abuse of the writ occurred here as the inclusion ofthe repetitive claims was necessary to present Claims 140 - 143 and to exhaustall claimsin petitioner's amended federal petition. (See traverse exhibit M (Declaration of Van Winkle, at 3-4 and 8-9). 191 G. PETITIONER HAS NOT ABUSED THE WRIT AND HAS ALLEGED SUFFICIENT FACTS INDICATING THAT HIS SEARCH AND SEIZURE CLAIMS BASED ON THE FOURTH AMENDMENT ARE COGNIZABLE. Respondenthasfailed to show thatpetitioner has abused the writ for “failure to allege sufficient facts indicating that claims based on the Fourth Amendmentare cognizable in a petition for a writ of habeas corpus.” (Order to Show Cause - Issue #7) (citing Sterling, supra, 63 Cal.2d at 487-488; and Sakarias, supra, 35 Cal.4th at 169). In Claims 1 and 3, petitioner has challenged the validity of his arrest and the search of his property. In Claims 25, 26, 27, 30, 89, and 94, petitioner has addressed the fairness of the hearings on the motion to suppress.’ Only Claims 1 and 3 arguably apply underthis bar, (Contra return, at 59), and this Court may review the merits of all claims because petitioner was not granted a fair and adequate hearing on his motion to suppress. Likewise, this Court may consider petitioner's claims due to the inadequate representation by trial, appellate and prior habeas counsel. Petitioner has thus shownthat "the search and seizure issues based onthe Fourth Amendment are cognizable on habeas corpus.” (Contra return,at 163 Claims 1 and 3, though raised in petitioner's second direct appeal, and Claims 25, 26, 27, 30, 89, and 94, thoughraised forthe first time in th e second petition, are exempt from procedural bar under Waltreus and Dixon. 192 60). Respondent wrongly concludesthat "habeas corpusis not available as a remedy becausethe defendant has 'readily available remedies' to litigate the Fourth Amendmentclaim through ‘an orderly process." (Return, at 59 (citing Sterling, supra, 63 Cal.2d at 487-89; and Clark, supra, 5 Cal.4th at 767)). In fact, habeas corpus is the proper vehicle to raise a claim of error premised on the violation of the Fourth Amendment whenthepetitioner has not had an adequate opportunity to litigate the claim. (Sterling, supra, 63 Cal.2d at 289). Petitioner has not "ignore[d] the rule that search and seizure claims are not cognizable on habeas...." (Contra return, at 60). Petitioner recognizes that - some fifty (50) years ago - in In re Harris (1961) 56 Cal.2d 879, 880, this Court found that habeas corpus is not available to challenge the use of evidence obtained by an unconstitutional search and seizure.“ These notions stem from Justice Traynor in Harris, supra, 56 Cal.2d at 880 (conc. opn. of Traynor, J.), where he concluded that the erroneous admission of unlawfully seized evidence presented no risk that an innocent defendant might be convicted, and: [t]he risk that the deterrent effect ofthe [exclusionary] rule will be compromised by an occasional erroneous decision refusing ‘64 Miranda claims and claims premised on involuntary confession s are exempt from this bar. (Sakarias, supra, 35 Cal.4th at 169). This conclusion coincides with claims of actual innocence, whic h often rest upon false confessions exacted from the accused by oppressive polic e interrogations. (See generally, Richard Leo, Police Interrogations and American Justice (2008) Harvard University Press). 193 to apply it is far outweighed by the disruption of the orderly administration ofjustice that would ensue if the issue could be relitigated over and over again oncollateral attack. (Harris, supra, 56 Cal.2d at 884 (cone. opn. of Traynor, J.)). In Shipp, supra, 62 Cal.2d 547 and In re Lessard (1965) 62 Cal.2d 497, this Court adopted the rule urged by Justice Traynor in his concurring opinion in In re Harris. However, in Sterling this Court noted that claims premised on a violation of the Fourth Amendment may be heard whenthe state has failed to afford a "defendanta full and fair opportunity to secure an adjudication of all claimed deprivationsof his constitutional rights in the securing of the evidence offered against himat trial.” (Sterling, supra, 63 Cal.2d at 488). Here, the proceedings surrounding petitioner's motion to suppressat trial were inadequate for several reasons. First, petitioner was represented by trial counsel who performed ineffectively by failing to locate and utilize material evidence;failing to effectively prepare for the proceedings; and failing to effectively cross-examinethe state's witnesses during the proceeding.'® Hadtrial counsel effectively represented petitioner, the prior suppression hearing would have been conducted fairly and adequately. 165 See second petition, at 289 (Claim 85: Defense Counsel's Failure to Examine Officer Carter's Contemporaneous Notes of the Confession Constituted Ineffective Assistance); second petition at 303 (Claim 88: Trial Counsel Rendered Ineffective Assistance by Failing to Attack the Credibility of the Police Officers); second petition at 305 (Claim 89: Trial counsel was Ineffective for Failing to Raise Issues Concerning the Missing- Juvenile Report); second petition at 319 (Claim 94: Trial Counsel Rendered Ineffective Assistance by Failing to Use the Police Missing-Juvenile Report to Impeach Key Prosecution Testimony and Otherwise Undermine the Legality of Petitioner's Arrest). 194 Second, respondenterrs in arguing that petitioner has made "no attempt whatsoeverto explain to this Court why it should disregard the procedural bar and addressthe claim." (Contra return, at 60). Petitioner has demonstrated that his search and seizure claims were inadequately litigated, dueto trial court error, ineffective assistance of counsel, and the failure to disclose exculpatory evidence.'® Thus, direct appeal was inadequate to challenge the violation of petitioner! Fourth Amendment rights "for reasons for which the defendant was not responsible.” (Sterling, supra, 63 Cal.2d at 488 (citing In re Spencer (1965) 63 Cal.2d 400, 406). Finally, petitioner has brought claims premised on the Fourth Amendmentin the secondpetition to allow this Court to view thetotality of the circumstances in assessingpetitioner's claims. (See e.g., Kyles, supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785; and Garcia, supra, 163 Cal.App.3d at 151). Accordingly, even if this Court finds that Claims 1 and 3 do not meet an exception under the Waltreus or Sterling bars, it should nevertheless find that no abuse of the writ occurred as the inclusion ofthe repetitive claims was necessary to present cumulative error claims 140 - 143 and to exhaustall claims in petitioner's amended federal petition. (See traverse exhibit M (Declaration of Van Winkle,at 3-4 and 8-9). 16 See Claims 25, 26, 27, 30, 89, and 94. 195 H. PETITIONER HAS PROVIDED AN ADEQUATE EXPLANATIONASTOHOWERRORS OCCURRINGIN HIS FIRST TRIAL AFFECTED THE FAIRNESS OF HIS SUBSEQUENT RETRIAL AND ARE CRITICAL TO HIS FEDERAL AND STATE HABEAS PROCEEDINGS. severe Respondenthasfailed to show that petitioner has abused the writ for “raising legal issues related to petitioner's first trial, when his conviction and sentence resulting from that trial were reversed by this Court, absent any plausible explanation why such alleged errors affected the fairness of his subsequentretrial." (Order to Show Cause- Issue #8) (citing Memro(1), supra, 38 Cal.3d 658). Respondentargues that Claims 11, 13, 14, 25, 26, 27, and 29 "impermissibly collaterally attack[] the judgmentthat was reversed in its entirety by this Court in 1985." (Return, at 61). To the contrary, only Claims 14 and 26 wereraised followingpetitioner's first trial.'°’ Here again, respondent miscounts the applicable claims.'** Respondent shows its error, whenit later asserts that only Claims 4 and 26 were "raised on appealfrom thefirst trial." (/d. at 62). On automatic appeal from his first judgment of death, this Court 167 See second petition at 78 (Claim 14: Denial of Petitioner’s Right to Counsel at the Penalty Phaseof the First Trial Deprived Petitioner of Due Processat the Retrial); and secondpetition, at 132 (Claim 26: Petitioner was Deprived of a Fair and Accurate Suppression Motion Hearing at the First Trial). 168 Respondent wrongly includes claims 11, 13, 25, 27 and 29. 196 reversed the guilt, special circumstance, and penalty verdicts, due to the trial court's error in summarily denying petitioner's Pitchess motion. The Court remandedthecaseto the trial court for retrial. (Memro I, supra, 38 Cal.3d at 665). This Court expressly declined to considerthe other claims oferror raised in petitioner's first direct appeal. Ud. ("Of the numerous claims made on appeal, this Court need consider only one - thatthe trial court erred in summarily denying appellant's discovery motion.")). Followinghisretrial, petitioner was again found guilty of the three murders, the multiple murderspecial circumstance found true; and he was sentenced to death. Petitioner has raised claims of error stemming from hisfirst trial, because their favorable resolution would have prevented his second penalty phase from occurring. Respondentincorrectly asserts that "[oJnly errorrelating to, and stemming from,thetrial itself may be considered in a subsequentappeal.” (Return, at 62 (citing People v. Deere (1991) 53 Cal.3d 704, 713; and People y. Durbin (1966) 64 Cal.2d 474, 477)). Respondenterrs in arguing that petitioner "has not shownthat the alleged errors in thefirst trial had any impact on the subsequentretrial." (Return, at 61). Respondent wrongly argues that petitioner has failed to "demonstrate any connection between these alleged errors occurring [in] his first trial and the manner in whichhis retrial was conducted." (/d.). Finally, respondenterrs in arguingthat the claims were "rendered moot when this Court reversed the conviction in Memro I and remandedthe entire caseforretrial." (id, at 62). 197 Petitioner has included Claims 14 and 26 taken from his first direct appeal, because, had this Court reached the merits on thefirst direct appeal, a favorable ruling for petitioner would havebarred the state from seeking the punishmentofdeath at a later time under double jeopardy principles. This is in line with petitioner's double jeopardy claims, which also show that he could not have been retried upon legal theories rejected by the jury at his first trial.’ Respondentfails in its attempt to invoke the doctrine of the law of the case. (Return, at 61 (citing Davies v. Krasna (1975) 14 Cal.3d 502, 507)). Respondent admits that the doctrine only concernsissues of law stemming from thefirst trial and effecting the subsequentretrial. (d. (citations omitted)). Respondent wrongly concludes that "no other issues arising fromthefirst trial were cognizable on the appeal from theretrial." 16 See secondpetition, at 58 (Claim 8: Petitioner's Prosecution for First-Degree Murder on CountIII Violated the Prohibition against Double Jeopardy underthe State and Federal Constitution); second petition at 63 (Claim 9: Petitioner's Prosecution on CountIII Violated Petitioner's Rights Underthe Fifth, Sixth, Eighth and Fourteenth Amendments); second petition, at 66 (Claim 10: Petitioner was acquitted of felony-murder on CountIII andretrying him under that theory violated Double Jeopardy Principles); secondpetition, at 71 (Claim 11: Petitioner’s Constitutional Rights Were Violated by the Failure to Follow Statutory Requirements Regarding Charges of Felony-Murder); secondpetition, at 74 (Claim 12: Petitioner was Acquitted of Premeditated Murder in CountIII and Retrying him Underthat Theory Violated Double Jeopardy Principles); second petition, at 77 (Claim 13: Trying Petitioner Under a Felony-Murder Theory for Count I Violated Double Jeopardy Since Petitioner Was Acquitted Under That Theory at the First Trial); second petition, at 78 (Claim 14: Denial of Petitioner’s Right to Counsel at the Penalty Phase of the First Trial Deprived Petitioner of Due Process at the Retrial). 198 (Return,at 62). First, the law ofthe case doctrine does not apply to the claims previously asserted on direct appeal because this Court explicitly refused to decide any claims besides the Pitchess claim - which ultimately earned reversalof petitioner's convictions. (See Memro(I), supra, 38 Cal.3d at 665). This fact makesthis case distinguishable from Krasna wherethis Court found “[a]pplication ofthat rule is particularly appropriate _. since two prior appellate decisions have resolved the issue as between these parties.” (Krasna, supra, 14 Cal.3d at 507 (emphasis omitted)). Moreover, the law of the case doctrine is subject to an importantlimitation:it “applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact," and “does not embracethe facts themselves...."_ (Moore y. Trott (1912) 162 Cal. 268, 273 (citation omitted)). Because no principles of law were deduced by this Court as to these claims during the prior direct appeal, the doctrine of the law of the case does not apply to relitigation of the facts underlying the claims now. Second,allowing a retrial of the penalty phase against petitioner after the error committed during the prior penalty phase was a “constitutionally intolerable event." (Herrera, supra, 506 U.S.at 419 (concurring opn., O'ConnorJ.); see also Lambert v. Blackwell (E.D.Pa. 1997) 962 F.Supp. 1521 (rev’d on other grounds, Lambert v. Blackwell (3rd Cir. 1997) 134 F.3d 506). Petitioner should have been subject to, at most, a sentenceoflife in prison without parole. This error also prejudiced petitionerin the guilt phase at the retrial because petitioner’s jury was 199 “death-qualified" pursuant to Witherspoonv. Illinois (1968) 391 U.S. 510, §18n.11.!” Petitioner’s jury in his secondtrial should not have been death- qualified, since he should not have beenretried in the penalty phase. By allowing theretrial of the penalty phase,the trial court improperly forced 1% Ty Witherspoon, the Court recognized that the voir dire practice of “death qualifi[cation] (/d.)" -- the exclusion for cause, in capital cases, of +urors opposedto capital punishment -- can dangerously erode this "inestimable safeguard"ofrepresentative juries by creating unrepresentative juries “uncommonly willing to condemn a manto die." (Adamsv. Texas (1980) 448 U.S.38, 44). Research has determined that “death-qualified" juries are often particularly prone to convict defendant’s as well. See, e.g., H.Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968) (Zeisel); W. Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964) (Wilson); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 53 (1970) (Goldberg); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971) (Jurow); and Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors’ Predisposition to Convict and onthe Quality of Deliberation, § Law & Hum. Behav. 53 (1984) (Cowan-Deliberation); Louis Harris & Associates, Inc., Study No. 2016 (1971) (Harris-1971); Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen,42 U. Colo. L. Rev. 1 (1970); Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L. J. 11 (1980); Fitzgerald & Ellsworth, Due Process:vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984); and Precision Research,Inc., Survey No. 1286 (1981). In addition, McCree introduced evidenceon these issues from Thompson, Cowan, Ellsworth, & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum.Behav. 95 (1984); Ellsworth, Bukaty, Cowan, & Thompson, The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum. Behav. 81 (1984); A. Young, Arkansas Archival Study (unpublished, 1981); and various Harris, Gallup, and National Opinion Research Center polls conducted between 1953 and 1981. 200 petitioner to undergo a guilt trial with a jury that was conviction prone. That jury should not have been death qualified, since petitioner should not have been death eligible. Trying petitioner in the guilt phase under these circumstances violated petitioner’s rights to a fair trial by an impartial jury from a cross-section of the community. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights were violated. Finally, petitioner brings claimsrelatedtohisfirst trial in the second petition in order to allow this Court to view thetotality of the errors affecting his trial when assessing petitioner's claims. (See e.g., Kyles, Supra, 514 U.S. 419; Ortega, supra, 561 F.2d 803; McLister, supra, 608 F.2d 785; and Garcia, supra, 163 Cal.App.3d at 151). Accordingly, evenif this Court finds that Claims 14, 26, and 92 are barred it should nevertheless find that no abuse ofthe writ occurredhere asthe inclusionofthe repetitive claims was necessary to present cumulativeerror claims 140 - 143 andto exhaustall claimsin petitioner's amended federalpetition. VII. CONCLUSION. The writ of habeas corpusis “the safe guard and the palladiumof our liberties." (In re Begerow (1901) 133 Cal. 349, 353). Ina capital case, where the state threatens to extinguish the ultimate liberty - that oflife - only the writ of habeas corpus can correct errors undermining a capital conviction and sentence once direct appeals have ceased and “the normal methodofrelief [proven] is inadequate.” (Harris, supra, 5 Cal.4th at 828 (footnote omitted)). Thus, “[t]he manifest need for time limits on collateral attacks on criminal judgments [ ] must be tempered with the knowledge that mistakes in the criminal justice system are sometimes made.” (Sanders, 201 supra, 21 Cal.4th at 703 (citing U.S. Const., art. I, § 9, cl. 2 (limiting federal government's powerto suspend writ of habeas corpus); Cal. Const., art. 1, § 11 (limiting state government's powerto suspend writ of habeas corpus)). In the wordsofthis Court’s former Chief Justice, California’s capital habeas system is "dysfunctional.” (CALIFORNIA COMMISSION ON THE FAIR APMINISTRATION OF JUSTICE, FINAL REPORT, Gerald Uelman,ed., available at: http:/www.ccfaj.org/documents/CCF A JFinalRepott. pdf(last visited December 19, 2010)). The problem is simply volume. In California, there are too manycapital defendants and capital appeals and too few competent capital counsel, for this Court to efficiently and effectively address the issues raised in each case.'”! In response, this Court has adopted procedures that have sought to increase the expeditious review of habeas appeals and enhanceits ability to find competent capital counsel. (See Morgan,supra, 50 Cal.4th at 940). However, these procedural reforms have proven unable to "timely" resolve capital appeals in California, or promote the appointment of qualified capital counsel.’” 11 See Morgan, supra, 50 Cal.4th at 938 (“the need for qualified habeas corpus counsel has increased dramatically in the past 20 years: The numberof inmates on California's death row has increased from 203 in 1987 to 670 in 2007. (Cal. Com.on the Fair Admin. of Justice, Final Rep. (2008) p. 121 (California Commission Final Report))."). As of today, the numberofcapital inmates has grown and there are currently 717 inmates on California’s death row. (California Department of Corrections, Division of Adult Operations, Condemned Inmate Summary List; availableat: http://www.cder.ca.gov/ Capital_Punishment/docs/ CondemnedInmateSummary.pdf(last visited February 5, 2011)). 12 See Morgan, supra, 50 Cal.4th at 938-39 (“Although hundreds of indigent death row inmates already have been provided with appointed habeas corpus counsel, approximately 300 of these inmates still lack such 202 Petitioner has not committed an abuse of the writ. He has submitted his secondpetition without substantial delay despite problemsinherent in California's capital system. Petitioner has provided specific and particularized justifications for excusal of proceduralbars. The potentially meritorious claims are substantiated by material, verifiable and exculpatory evidence. All the claims are cognizable, and this petition should not be denied in its entirety, or at all. By his secondpetition, petitioner has sought to vindicate the many violations ofhis constitutional rights that occurred duringhis capitaltrials. Heis justified in filing this successive petition, because prior counsel, at all levels, failed to preventor correcthis illegal confinement and unlawful sentence. Trial, appellate, and prior habeas counselall performed deficiently in this case by failing to investigate exculpatory and identifiable triggering facts, failing to develop meritorious legal claims or defenses, and failing to presentto the California courts and juries evidence and legal theories materially relevant to their guilt and sentencing determinations. Current counselare the first counsel to present the many "potentially meritorious claims," which riddle petitioner's fundamentally unfair capital trial and appellate proceedingsandare therefore the first to perform competently in petitioner’s case. (See Clark, supra, 5 Cal.4th at 780). There is no needfor this Court "to tame habeas corpuslitigation and curtail abusive and dilatory writ practice" because ofthis case. (Return, at 63). No abusive or dilatory writ practices have occurred here. Respondent inappropriately chidesall "[h]abeas attorneys" as "prone to second-guess counsel. The search for qualified counsel can take eight to 10 years or longer (Cal. Com. Final Rep., supra, at 122.)”). 203 prior counsel andto pile on new claims that previous lawyers may very well have considered and wisely rejected." (Id., at 64). However, and like in other cases, "respondent's arguments are premised on an erroneous understanding of our habeas corpus proceduralrules and the scope of counsel's duty to conduct a habeas corpus investigation in a capital case." (Robbins, supra, 18 Cal4th at 791). Here, instead of committing dilatory practices, petitioner's counsel sought to representtheir client as competently as possible. (Contra return, at 64). Thus, counsel has sought to exhaustall the claimsraised in his current federal petition. For thefirst time, petitioner has thus presented a petition consisting of all "potentially meritorious claims" and meeting this Court’s standards for competent representation in a capital habeascase. (Clark, supra, 5 Cal.4th at 780). This Court should not heed respondent's prodding to "check{]" petitioner so that the "assault on prior appellate and habeas corpus counsel [may] be countered." (Id.).'” Respondent's ire appears directed at other counsel's "abusive tactics and lawyer excesses" and causes thestate to divert focus from the specifics of petitioner's case.” (/d.). In so doing, '3 "That an appellate attorney has demonstrated a willingnessto undertake the difficult task of representing criminal defendants sentenced to suffer the death penalty does not excusehis failure timely to investigate fully the potential grounds for habeas corpusrelief in any particular case." (Sanders, supra, 21 Cal.4th at 712 (citations omitted)). '4 Respondentfails to provide a citation for their conclusion that "Ta]n abuse of[] process occurs when the habeaspetitioner deliberately disregards procedural rules that have been firmly established to govern petition for writs of habeas corpus and attempts to short-circuit the orderly procedure." (Return, at 62 (internal quotation omitted)). Instead, 204 respondentfails to show that petitioner has committed an abuse of the writ and that his claims are not cognizable. Respondent's cry that a favorable ruling for petitioner would "stalemate the orderly administration ofjustice in this case andin other cases" is erroneous. (/d.). A favorable ruling for " petitioner would advancethe orderly administration ofjustice and would checkmate the miscarriage ofjustice that has occurredin hiscase. Respondent seeksto limit the use of ineffective assistance of counsel as an exception to procedural bars, not because petitioner has failed to justify the exception in his case, but because respondent wants to impede "newly appointed attorneys [from] inevitably resort[ing] to the magic words of ineffective assistance of counsel.” (Return, at 64 (citations and internal quotations omitted)). Respondent's arguments are thus not grounded in the facts ofpetitioner's case, but rather, in the policies that respondent would like to see this Court adopt for administration of capital habeas appeals. By admission here, prior state counsel performed ineffectively and prior federal counsel was previously found to have provided inadequate and incompetent representation in a California capital habeas case in federal court. (See traverse exhibits G and L (Court Orderin Ross v. Woodford; and Declaration of Nolan,at 3-4). Petitioner has not run a "gambit of delay and distract{ion]"in filing the second petition. (Contra return,at 64). In fact, and to the contrary, petitioner quickly filed his exhaustion petition directly following the respondentbelieves that a review ofthe federal "abuse [of the] writ" standard is instructive. (Id. at 63 (citing and discussing McCleskey, supra, 499 U.S. at 488, 491, and 493). However, this Court previously determined that McCleskey "is irrelevantto petitioner's burdenin this court []." (Clark, supra, 5 Cal.4th at 777). 205 . abeyanceofhis federallitigation, appointment by this Court, and the development ofaprimafacie case for each ofthe one-hundred-forty-three (143) claims lodged in his secondpetition. Petitioner has not "attempted to avoid writ policies and proceduresclearly set [out] by this Court." (Ud. at 67). In fact, petitioner has abided byall writ policies and has soughtto live up to this Court's expectations for competent capital habeas counsel by presenting all "potentially meritorious claims." (Clark, supra, 5 Cal.4th at 780; see also Morgan, supra, 50 Cal.4th at 941). Contrary to respondent’s arguments, petitioner has not asserted the serial ineffectiveness of prior counselas the "sole justification for presenting more than one hundred successive and repetitious claims." (Contra return, at 67). Petitioner has established, in addition to his case of ineffective assistance of counsel, a primafacie case that the dismissal ofhis claims would constitute a miscarriage ofjustice. Thus, each of his one- hundred-forty-three (143) claims are cognizable under one of the many exceptions to this Court's procedural bars, and all are presentable as cumulative error claims. Further, and contrary to respondent's assertion that this Court's conclusion in Robbins controls, this case is more similar to Sanders than Robbins. (Contra return, at 64). Here, appellate and prior habeas counsel did not, "after a diligent and thorough review oftrial counsel's files, the trial record and the appellate briefs, reasonably conclude[that] there [were] no triggering facts that would lead one to suspect the existence of issues of potential merit..." (Sanders, supra, 21 Cal.4th at 708). Here,like in Sanders, counsel "cease[d] representation before he or she should have done so (i.e., before investigation is complete, and/or before counsel has a 206 reasonable basis upon which to concludethat no potentially meritorious habeas corpusissueexist[ed]." (Jd. at 708-09). Likewise, "Tijn response to suchtriggering facts, counsel did not seek additional funding or conduct a further investigation in order to determine whether potentially meritorious claims existed." (Id. at 714; see also traverse exhibit L (Declaration of Nolan,at 4-5). Moreover, petitioner’s second "petition contains no shortage of claims raising issues of potential merit" (id., at 713 (emphasis omitted)), and petitioner has alleged that appellate and prior habeas counselfailed to identify, investigate, develop and present these claimsto this Court. Thus, like in Sanders, this Court may review the merits of all one-hundred-forty- three (143) claims lodged in the secondpetition. (/d. at 7 19). Respondent's analogyof petitioner's claims to the multiplication of broomsin the Sorcerer's Apprentice is odd at best, and resorts to the use of fuzzy math.!”> (Id. at 65). For example, respondent arguesthat "[w]ith each new setof attorneys,petitioner's claims have increased exponentially." (Return,at 64).!7° In actuality, however, the fact that the secondpetition 175 Petitioner denies that he has presented "over 100 violations ofhis constitutional rights that were raised and rejected on appeal." (Return,at 65). Previously respondent arguedthat petitioner had presented 94 repetitive claims. (/d., at 7). Respondenthas inconsistently counted claims throughout their return. Whereas petitioner has consistently counted fifty-. six (56) repetitive claims amidst the one-hundred-forty-three (143) raised in his secondpetition. 176 Mathematically speaking, somethingis said to increase or decrease exponentially if its rate of change may be expressedusing exponents. An exponent is a function which raises some given constant (the "base") to the powerofits argument. A graph of such a rate would appear not as a straight line, but as a curve that continually becomes steeper or shallower. Thus,if petitioner were to have "exponentially" increased his 207 includes one-hundred-forty-three (143) claims proves that petitioner has finally been appointed counsel who have brought "all potentially meritorious claims" to this Court. (Clark, supra, 5 Cal.4th at 780). Respondenterroneously faults petitioner for the ineffective assistance provided to him by his appellate and prior habeas counsel appointed by this Court. (See /d.). Petitioner has not adopted a "shotgun strategy" of presenting claims in a piecemeal fashion. (See return, at 65). Instead, petitioner presented all his claims in the secondpetition to ensure that there will not be a need to again return to this Court and present more potentially meritorious claims. Hadpetitioner's prior counsel performed effectively in doing the sameat an earlier time, this secondpetition, would be unnecessary. Here again, respondent errs because habeas counselis not charged with bringingonly claims with "the highest potential of succeeding" (/d.), but instead must bring "all potentially meritorious claims." (Clark, supra, 5 Cal4th at 780). Moreoverpetitioner hasjustified the presentation ofall one-hundred- forty-three (143) claims by: 1) demonstrating a primafacie showing that each claim meets an exception to any applicable procedural bars and should be reviewed on the merits; 2) arguing that their inclusion are necessary for the sake ofclarity and convenience; 3) arguing that their inclusionis necessary to facilitate his future demonstration to the federal court thatall claims from the originalfifty-six (56) claims the equation would be (56). Fifty-six multiplied by fifty-six would require petitioner to present 3,136 claims in order to exponentially increase his claims. Needlessto say, respondent's "exponential count" is more rhetorical than mathematical, but no more persuasive. 208 federal constitutional grounds were exhaustedin this Court; 4) arguing that _ their inclusion is necessary to support his claims of cumulative prejudice. (See Claims 140-143); and 5) arguing that their inclusion is necessary to provide contextto all his new claims and particularly in his ineffective assistance of counsel claims. (See traverse exhibit M (Declaration of Van Winkle, at 7-8). Petitioner has not abusedthe writ by "flaunting proceduralrules that have been carefully crafted and clearly established an consistently applied by this Court." (Contra return, at 66). First, this Court's procedural default lawshave been foundto be inconsistently applied. (See Morales, supra, 85 F.3d at 1392). Second, petitioner has not flaunted the rules since, as respondent admits, petitioner has concededthat many claimsare repetitive and identified the claims accordingly. The fact that respondent has spent considerable time trying to rebut petitioner's assertions only speaksto the strength of the primafacie case petitioner has presented for excusal of the procedural bars. Petitioner has not caused respondent and this Court to "undertake a needless and burdensome waste of time and resources." (Contra Id. at 66). The claims oferror asserted in petitioner's second petition are meritorious and have beenraised to vindicate violations ofhis constitutional rights. Respondent mayfeel burdenedin attempting to refute petitioner's substantiated and meritorious claims oftrial court error, ineffective assistance of counsel and prosecutorial misconduct; but the fact that respondent cannotcarry that burden does not makethestate's effort "needless." Instead, it proves that petitioner has presented "all potentially meritorious claims" (Clark, supra, 5 Cal.4th at 778, 780) in his case, and 209 has substantiated them with credible and verifiable evidence in a concisely formatted petition that accords with this Court's standards in a capital case. In no wayis it a waste oftime for this Court to review claims alleging that a capital conviction and death sentence have been obtained in violation of the California and United States Constitutions. In summary,petitioner has stated specific facts to establish that his newly made claims were presented without substantial delay. Petitioner has stated specific facts justifying reconsideration of other claims, rejected on direct appeal and habeas, and justifying the exemption of the claims under the Waltreus bar. Petitioner has stated specific facts justifying his filing of a successive petition and indicating that all non-repetitive claims are cognizable under the Dixon bar. All of the claims fall within one of the four Clark and Harris exceptions. Accordingly the petition for writ of habeas corpus should not be considered an abuseofthe writ and should not be denied as procedurally barred. Indeed, the secondpetition should be \ wf DATED:February 26, 2011 oyectfull sabe, granted by the Court. JAMESS. THOMSON PETER GIANNINI Attormeys for Petitioner Reno 210 CERTIFICATE OF COMPLIANCE CAPITAL CASE I certify that the attached PETITIONER’S TRAVERSE TO RESPONDENT’S RETURN TO THE SECOND PETITION FOR WRIT OF HABEAS CORPUSuses a 13 point Times New Roman font and contains 57,751 words. DATED:February 26, 2011 JAMESS. THOMSON PETER GIANNINI Attorneys for Petitioner Reno 211 DECLARATION OF SERVICE Re: In re Reno Case No: $124660 I, the undersigned, declare as follows: Lam a citizen of the United States, over the age of 18 years and not a party to the within action; my place of employmentand business address is 819 Delaware Street, Berkeley, CA 94710. On February 28, 2011, I served the attached PETITIONER’S TRAVERSE TO RESPONDENT’S RETURN TO THE SECOND PETITION FOR WRIT OF HABEAS CORPUSbyplacing a true copy thereof in an envelope addressed to the person(s) named below at the address(es) shown,andby sealing and depositing said envelope in the United States Mail at Berkeley, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each of the places so addressed,for there is regular communication by mail between the place of mailing and eachofthe places so addressed. Robert David Breton Peter Giannini Deputy Attorney General Law Offices of Peter Giannini 300 South Spring Street, Suite 1702 1015 Gayley Avenue, #1000 Los Angeles, CA 90013 Los Angeles, CA 90024 Reno Saor Stetler Box D-63100 Law Office of SaorStetler _ San Quentin State Prison P.O. Box 2189 San Quentin, CA 94974 Mill Valley, CA 94942 I declare under penalty of perjury that the foregoing is true and correct. Signed on February 28, 2011 at Berkeley, California. AARWUN JO Ss 212