by Douglas Ankney

In a case involving three issues of first impression, the Court of Appeal of California, First Appellate District, ruled that Penal Code Section 1509(1)(c)’s 10- and 60-day deadlines are directory, not mandatory; the section’s “substantiality standard” is met where the applicant makes a strong enough case to permit debate by reasonable jurists; and the section permits “as applied” challenges to section 1509(d). (Note: All statutory references are to the California Penal Code.)

In 2000, Ropati Afatia Seumanu was convicted by jury of first-degree murder and other offenses and special circumstances allegations. He was sentenced to death. His judgment was upheld on appeal. In 2012, Seumanu filed for habeas corpus relief in the California Supreme Court. Upon summary denial of the Initial Petition, he petitioned for habeas corpus relief in the U.S. District Court for the Northern District of California. The proceedings for the Federal Petition were stayed to allow him to exhaust his remedies in state court.

In 2022, he filed a petition for habeas corpus relief in the Alameda County Superior Court (“Exhaustion Petition”) alleging nine claims not presented in the Initial Petition. The superior court dismissed the Exhaustion Petition, finding each claim to be successive and rejecting Seumanu’s constitutional challenges to section 1509(1)(c). The superior court also refused to issue a Certificate of Appealability (“COA”). Seumanu timely filed a notice of appeal and requested the Court of Appeal issue a COA.

The Court began its opinion by noting that although the “COA request is simply a motion … we publish this opinion because of the relative dearth of published case law applying our Supreme Court’s holdings in” Briggs v. Brown, 400 P.3d 29 (Cal. 2017), and In re Friend, 489 P.3d 309 (Cal. 2021), “and to provide some guidance as to how COA requests under section 1509.1(c) should be handled more generally.

In deciding the appeal, the Court addressed three issues of first impression:

“(1) Is the 10-day time limit in section 1509.1(c) for the grant or denial of COA requests in the Court of Appeal mandatory or directory? (2) How strong a showing must a COA applicant make to meet the ‘substantial claim for relief’ test in section 1509.1(c)? And (3) is an as-applied attack on the constitutionality of section 1509(d) appealable under section 1509.1(c)?”

            The Court answered those questions as follows: “(1) section 1509.1(c) sets no mandatory deadline for granting or denying COA requests, (2) a ‘substantial claim [to] relief’ under section 1509.1(c) requires a showing strong enough for reasonable jurists to debate whether the trial court erred and thus that justifies allowing the appeal to proceed to decision on the merits, and (3) as-applied attacks on the constitutionality of section 1509(d) are appealable under section 1509.1(c).”

Sections 1509(a) and 1509(d) draw fundamental distinctions between “initial petitions” and “successive petitions” in capital cases. Under section 1509(d), dismissal is required of any successive petition “unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the sentence.” Section 1509 provides that most capital petitions be initially heard in the sentencing court. In re Friend. “The superior court must issue ‘a statement of decisions explaining the factual and legal basis for its decision’ resolving any such petition (section 1509(f)), subject to review in the Court of Appeal.” Section 1509.1.

“For a petitioner seeking review of the denial of a successive petition, an appeal may not be taken as of right [but] [t]he petitioner may appeal the decision of the superior court denying relief on a successive petition only if the superior court or the court of appeal grants a [COA].” Section 1509.1(c). Obtaining a COA requires the petitioner to show both “a substantial claim for relief ... and a substantial claim that the requirements of [section 1509(d)] have been met.” Section 1509.1(c). Superior courts must decide whether to grant or deny a COA “concurrently with a decision denying relief on the petition.” Section 1509.1(c). If the COA is sought in the Court of Appeal, the “Court of Appeal shall grant or deny a request for a certificate of appealability within 10 days of an application for a certificate.” Id.

If the above 10-day limitations period were mandatory, then the Court of Appeal would not have jurisdiction to hear any appeal where the COA request was not granted within the 10- day period, the Court reasoned. Thus, the Court concluded the 10-day limitation period is directory, not mandatory.

While the California Legislature has the “power to regulate the speed at which adjudication in the courts take place,” Briggs, “the constitutional separation of powers does not permit statutory restrictions that would materially impair fair adjudication or unduly restrict the courts’ ability to administer justice in an orderly fashion.” People v. Engram, 240 P.3d 237 (Cal. 2010). For example, if the limitations period makes it impractical or impossible for courts to decide the issues, then separation of powers requires that the limitations period be directory. In re Shafter-Wasco Irrigation District, 130 P.2d 755 (Cal. Ct. App. 1942).

Further, “[i]n cases involving fixed decisional time limits, an ‘intent to divest the court of jurisdiction is not read into the statute unless that result is expressly provided or otherwise clearly intended.’” Briggs. “And in undertaking this analysis, the pivotal issue is often whether there is a consequence or penalty for missing the deadline. If no consequence or penalty is provided, a statutory time limit will be deemed directory.” Id.

The Court concluded that because section 1509.1(c) provides “no effective mechanism” to enforce the 10-day period (Briggs) and because strict enforcement “would materially impair fair adjudication” of the present case and unduly restrict the Court’s ability to “administer justice in an orderly fashion,” the 10-day deadline is directory. (For the same reasons, the Court also concluded the 60-day deadline of 1509.1(c) is directory.)

As to question (2) regarding the necessary showing for a “substantial claim for relief” of section 1509.1(c) with regard to Seumanu’s claim that the superior court incorrectly determined his claims were successive, the Court observed that “[w]hen interpreting statutory language, a court may ‘compare the provision to the construction given other similar statutes ... including federal statutes when they have similar objectives and relevant wording.’” People ex rel. Allstate Ins. Co. v. Weitzman, 107 Cal. App. 4th 534 (2003).

The COA procedure in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is “markedly similar to the COA procedure in section 1509(c),” according to the Court. Under the AEDPA’s COA procedure in 28 U.S.C. § 2253(c)(2), “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473 (2000). Similarly, the Court in the present case reasoned that “the substantiality standard under section 1509.1(c) is met where the COA applicant makes a case strong enough for reasonable judges to debate whether the trial court’s successiveness ruling was incorrect.”

A claim is not successive where: (1) “the factual basis for a claim was unknown to the petitioner and he had no reason to believe that the claim might be made and the claim is asserted as promptly as reasonably possible;” (2) cases involving “claims based on a change in the law that is retroactively applicable to final judgments” where the claims are promptly asserted in a subsequent petition for habeas relief; and (3) “the ineffective assistance of prior counsel may justify raising a claim in a subsequent petition.” Friend.

In the present case, in Seumanu’s Claim Four, he argued that his claim was not successive. In Claim Four he argued his trial counsel had failed to object the trial court’s excusing for cause a potential juror whose answers during voir dire did not disqualify the potential juror, and his habeas counsel failed to raise the issue that his trial counsel had rendered ineffective assistance as to this failure to object. The Court concluded that Seumanu made a case strong enough for reasonable judges to debate the issue and that a COA should issue as to Claim Four.

Finally, as to question (3), Seumanu argued that section 1509(d) is unconstitutional as applied to him because it narrows the miscarriage of justice exception of In re Clark, 855 P.2d 729 (Cal. 1993). In deciding whether the Court had jurisdiction to even address the issue, the Court observed that in Friend the California Supreme Court “reasoned that the section 1509.1(c) COA standard may be read to permit a certificate to issue when the petitioner has set forth a substantial argument that section 1509(d) does not apply at all because the petition at issue is not successive.” Thus, the Court concluded that “[a]pplying the same logic, we believe the COA standard under section 1509.1(c) ‘may be read to permit a [COA] to issue when the petitioner has set forth a substantial argument that section 1509(d) does not apply at all’ because section 1509(d) is unconstitutional.” However, in the present case, the Court concluded that Seumanu failed to make a substantial argument that section 1509(d) is unconstitutional as applied to him.

Accordingly, the Court granted Seumanu’s request for a COA only as to Claim Four of his Exhaustion Petition. See: In re Seumanu, 100 Cal. App. 5th 599 (2024).

Editor’s note: Anyone interested in the issues involved in this case is strongly encouraged to read the Court’s full opinion, which contains significantly more detailed and nuanced discussions of the various issues than is possible to cover in this brief opinion summary.

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