IN THE SUPREME COURT OF 

CALIFORNIA

In re JACK WAYNE FRIEND

on Habeas Corpus.

S256914

First Appellate District, Division Three

A155955

Alameda County Superior Court

81254A

__________________________________________________________

June 28, 2021

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Cuéllar, Groban, and Jenkins concurred.

__________________________________________________________
1

In re FRIEND

S256914

Opinion of the Court by Kruger, J.

Proposition 66, the Death Penalty Reform and Savings Act 

of 2016 (as approved by voters, Gen. Elec. (Nov. 8, 2016) § 1), 

made wide-ranging changes to the procedures for challenging 

convictions and sentences in capital cases. Among other things, 

Proposition 66 introduced new restrictions on the presentation 

of habeas corpus claims in what the measure refers to as 

“successive” petitions: Individuals who file successive petitions 

must show they are actually innocent or ineligible for the death 

penalty before courts may consider the merits of their claims. 

(Pen. Code, §§ 1509, 1509.1.) The question before us concerns 

the scope of these restrictions on successive petitions. Do the

restrictions apply to all claims raised in a second or subsequent 

habeas petition, including claims based on newly available 

evidence and newly decided case law? Or do the restrictions

apply only to those claims that were or could have been raised 

in an earlier petition?

We answer this question by reference to background 

principles of habeas corpus law. The traditional rules governing 

the handling of successive petitions have long distinguished 

between the presentation of newly available claims and the 

presentation of claims that could have been raised earlier; the 

law has traditionally limited only the latter, forbidding 

consideration of repetitive or pretermitted claims except in a 

few, narrowly defined circumstances. Proposition 66 modified 

these rules by further narrowing the circumstances under which 
In re FRIEND

Opinion of the Court by Kruger, J.

2

courts may consider repetitive or pretermitted claims in capital 

cases. But properly understood, Proposition 66’s successiveness 

restrictions do not limit the consideration of claims that could 

not reasonably have been raised earlier, such as those based on 

newly available evidence or on recent changes in the law —

claims that have not previously been thought subject to 

successiveness limitations. Thus, under the law as amended by 

Proposition 66, habeas corpus petitioners must make a showing 

of actual innocence or death ineligibility if they seek a second 

chance to make an argument they could have made earlier. No 

such requirement applies to the habeas petitioner who raises a 

newly available claim at the first opportunity.

I.

Petitioner Jack Wayne Friend was convicted of the 1984 

robbery murder of Oakland bartender Herbert Pierucci and 

sentenced to death. On automatic appeal, we affirmed the 

capital convictions and sentence. (People v. Friend (2009) 47 

Cal.4th 1, 10.) Friend filed a habeas corpus petition in this 

court, which we denied in 2015. Friend then filed a federal 

habeas petition in the United States District Court for the 

Northern District of California. In 2017, the federal court 

stayed proceedings to allow Friend to exhaust six claims in state 

court. The following year, Friend filed a second state habeas 

petition raising the six unexhausted claims in Alameda County 

Superior Court.1

1 As identified in Friend’s present habeas petition, the six 

unexhausted claims concern: 1. Discriminatory use of 

peremptory challenges by the prosecutor; 2. Ineffective 

assistance of trial counsel in jury selection and investigation of 
In re FRIEND

Opinion of the Court by Kruger, J.

3

In the meantime, before Friend filed his second state court 

petition, Proposition 66 came into force; the measure took effect

in October 2017, after this court considered and decided a 

number of facial challenges to its constitutionality. (See Briggs 

v. Brown (2017) 3 Cal.5th 808, 862 (Briggs).) Applying Penal 

Code section 1509, subdivision (d), a provision newly added by 

Proposition 66, the Alameda County Superior Court dismissed 

Friend’s recently filed habeas petition as successive. It further 

denied Friend’s request for a certificate of appealability under 

newly added Penal Code section 1509.1, subdivision (c). Friend

then filed a notice of appeal and requested a certificate of 

appealability from the Court of Appeal. That court denied 

Friend’s request for a certificate and marked the notice of appeal 

inoperative. (See Cal. Rules of Court, rule 8.392(b)(7).) 

We granted Friend’s petition for review, specifying three 

issues for briefing: the meaning of the term “successive” in 

Penal Code sections 1509 and 1509.1, the propriety of applying 

the provisions’ limits on successive petitions when the litigant’s 

first petition was filed before Proposition 66 took effect, and the 

appealability of a dismissal for successiveness under Penal Code 

sections 1509 and 1509.1.

evidence for trial; 3. Unconstitutionality of imposing the death 

penalty due to petitioner’s organic brain damage; 4. Denial of 

due process in the participation of Justices Chin and Corrigan 

in prior proceedings in this court; 5. Introduction of statements 

taken by police in violation of Miranda v. Arizona (1966) 384 

U.S. 436; and 6. Ineffective assistance of appellate counsel in 

failing to raise the Miranda claim on direct appeal. 
In re FRIEND

Opinion of the Court by Kruger, J.

4

II.

A.

Proposition 66 enacted a number of statutory reforms in 

an effort to make the system of capital punishment “more 

efficient, less expensive, and more responsive to the rights of 

victims.” (Briggs, supra, 3 Cal.5th at p. 831.) Among these 

reforms were various changes to the procedures for handling 

and resolving habeas corpus petitions in capital cases. (Id. at 

pp. 823–825.) The bulk of these changes are found in newly 

added Penal Code section 1509.

2

 The most prominent change is 

2 Penal Code section 1509 provides in full: 

“(a) This section applies to any petition for writ of habeas 

corpus filed by a person in custody pursuant to a judgment of 

death. A writ of habeas corpus pursuant to this section is the 

exclusive procedure for collateral attack on a judgment of death.

A petition filed in any court other than the court which imposed 

the sentence should be promptly transferred to that court unless 

good cause is shown for the petition to be heard by another court. 

A petition filed in or transferred to the court which imposed the 

sentence shall be assigned to the original trial judge unless that 

judge is unavailable or there is other good cause to assign the 

case to a different judge.

“(b) After the entry of a judgment of death in the trial 

court, that court shall offer counsel to the prisoner as provided 

in Section 68662 of the Government Code.

“(c) Except as provided in subdivisions (d) and (g), the 

initial petition must be filed within one year of the order entered 

under Section 68662 of the Government Code.

“(d) An initial petition which is untimely under 

subdivision (c) or a successive petition whenever filed shall be 

dismissed 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 
In re FRIEND

Opinion of the Court by Kruger, J.

5

was convicted or is ineligible for the sentence. A stay of 

execution shall not be granted for the purpose of considering a 

successive or untimely petition unless the court finds that the 

petitioner has a substantial claim of actual innocence or 

ineligibility. ‘Ineligible for the sentence of death’ means that 

circumstances exist placing that sentence outside the range of 

the sentencer’s discretion. Claims of ineligibility include a claim 

that none of the special circumstances in subdivision (a) of 

Section 190.2 is true, a claim that the defendant was under the 

age of 18 at the time of the crime, or a claim that the defendant 

has an intellectual disability, as defined in Section 1376. A 

claim relating to the sentencing decision under Section 190.3 is 

not a claim of actual innocence or ineligibility for the purpose of 

this section.

“(e) A petitioner claiming innocence or ineligibility under 

subdivision (d) shall disclose all material information relating to 

guilt or eligibility in the possession of the petitioner or present 

or former counsel for petitioner. If the petitioner willfully fails 

to make the disclosure required by this subdivision and 

authorize disclosure by counsel, the petition may be dismissed.

“(f) Proceedings under this section shall be conducted as 

expeditiously as possible, consistent with a fair adjudication.

The superior court shall resolve the initial petition within one 

year of filing unless the court finds that a delay is necessary to 

resolve a substantial claim of actual innocence, but in no 

instance shall the court take longer than two years to resolve 

the petition. On decision of an initial petition, the court shall 

issue a statement of decision explaining the factual and legal 

basis for its decision.

“(g) If a habeas corpus petition is pending on the effective 

date of this section, the court may transfer the petition to the 

court which imposed the sentence. In a case where a judgment 

of death was imposed prior to the effective date of this section, 

but no habeas corpus petition has been filed prior to the effective 

date of this section, a petition that would otherwise be barred by 

subdivision (c) may be filed within one year of the effective date 

of this section or within the time allowed under prior law, 

whichever is earlier.”
In re FRIEND

Opinion of the Court by Kruger, J.

6

a new one-year deadline for filing an “initial” habeas petition 

after the appointment of counsel (Pen. Code, § 1509, subd. (c)); 

this represents a departure from traditional habeas law in 

capital as well as noncapital cases, which ordinarily considers 

the timeliness of habeas petitions without imposing “fixed, 

determinate deadlines.” (Robinson v. Lewis (2020) 9 Cal.5th 

883, 890; see In re Robbins (1998) 18 Cal.4th 770, 780 (Robbins) 

[outlining pre-Proposition 66 timeliness rules for capital 

habeas].) But Proposition 66 changes habeas procedure in other 

ways as well. Whereas the approved practice was for all capital 

habeas petitioners to file directly in this court, section 1509 now

calls for most capital petitions to be heard initially in the 

sentencing court. (Pen. Code, § 1509, subd. (a).) And whereas 

the law generally requires unsuccessful habeas petitioners to 

seek review by filing a new habeas petition in a higher court (see 

Robinson, at p. 895), newly added Penal Code section 1509.1 

requires capital petitioners to seek review by way of appeal 

instead. (Pen. Code, § 1509.1, subd. (a).)3

3 Penal Code section 1509.1 provides in full: 

“(a) Either party may appeal the decision of a superior 

court on an initial petition under Section 1509 to the court of 

appeal. An appeal shall be taken by filing a notice of appeal in 

the superior court within 30 days of the court’s decision granting 

or denying the habeas petition. A successive petition shall not 

be used as a means of reviewing a denial of habeas relief.

“(b) The issues considered on an appeal under subdivision 

(a) shall be limited to the claims raised in the superior court, 

except that the court of appeal may also consider a claim of 

ineffective assistance of trial counsel if the failure of habeas 

counsel to present that claim to the superior court constituted 

ineffective assistance. The court of appeal may, if additional 
In re FRIEND

Opinion of the Court by Kruger, J.

7

The provisions at issue in this case set out instructions for 

handling successive petitions. Penal Code section 1509, 

subdivision (d) (section 1509(d)), provides, as relevant here: “An 

initial petition which is untimely under subdivision (c) or a 

successive petition whenever filed shall be dismissed 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.” Penal Code section 1509.1 then 

imposes a related procedural hurdle for litigants seeking to 

appeal the denial of a successive petition. It provides that such 

litigants “may appeal the decision of the superior court denying 

findings of fact are required, make a limited remand to the 

superior court to consider the claim.

“(c) The people may appeal the decision of the superior 

court granting relief on a successive petition. The petitioner 

may appeal the decision of the superior court denying relief on 

a successive petition only if the superior court or the court of 

appeal grants a certificate of appealability. A certificate of 

appealability may issue under this subdivision only if the 

petitioner has shown both a substantial claim for relief, which 

shall be indicated in the certificate, and a substantial claim that 

the requirements of subdivision (d) of Section 1509 have been 

met. An appeal under this subdivision shall be taken by filing a 

notice of appeal in the superior court within 30 days of the 

court’s decision. The superior court shall grant or deny a 

certificate of appealability concurrently with a decision denying 

relief on the petition. The court of appeal shall grant or deny a 

request for a certificate of appealability within 10 days of an 

application for a certificate. The jurisdiction of the court of 

appeal is limited to the claims identified in the certificate and 

any additional claims added by the court of appeal within 60 

days of the notice of appeal. An appeal under this subdivision 

shall have priority over all other matters and be decided as 

expeditiously as possible.”
In re FRIEND

Opinion of the Court by Kruger, J.

8

relief on a successive petition only if the superior court or the 

court of appeal grants a certificate of appealability.” (Pen. Code, 

§ 1509.1, subd. (c) (section 1509.1(c)).) Section 1509.1(c) further 

specifies that “[a] certificate of appealability may issue under 

this subdivision only if the petitioner has shown both a 

substantial claim for relief, which shall be indicated in the 

certificate, and a substantial claim that the requirements of 

subdivision (d) of Section 1509 have been met.” The overall 

effect of these restrictions is to forbid courts from considering 

successive petitions, or appeals from the denial of such petitions, 

that are unaccompanied by a showing of innocence or 

ineligibility for the death penalty.

To put this set of reforms in context, we briefly describe 

the law as it existed before Proposition 66 (and as it continues 

to exist in noncapital cases). Restrictions on the consideration 

of successive habeas petitions are not new. Several decades ago, 

California courts identified presentation of claims in a 

“ ‘piecemeal [manner] by successive proceedings’ ” as an abuse 

of the writ process. (In re Horowitz (1949) 33 Cal.2d 534, 547, 

quoting In re Drew (1922) 188 Cal. 717, 722.) The solution was 

the development of the so-called successiveness bar, a set of 

limits that applied in all habeas cases before Proposition 66 and 

that continues to apply to noncapital cases today. Like other 

procedural bars developed in the case law, the successiveness 

bar was “designed to ensure legitimate claims are pressed early 

in the legal process.” (In re Reno (2012) 55 Cal.4th 428, 452 

(Reno).) The bar therefore limits consideration of claims that 

were unjustifiably omitted from earlier petitions. But 

importantly, it does so “while leaving open a ‘safety valve’ for 

those rare or unusual claims that could not reasonably have 

been raised at an earlier time.” (Ibid.)
In re FRIEND

Opinion of the Court by Kruger, J.

9

To determine whether the successiveness bar applies

under traditional habeas principles, a court conducts a two-step 

analysis. (In re Clark (1993) 5 Cal.4th 750 (Clark).) First, the 

court asks whether the habeas petitioner who files a second or 

subsequent petition has adequately justified his or her failure to 

present his or her claims in an earlier petition. (Id. at pp. 774–

775.) Adequate justifications include the inability to bring the 

claim earlier, as where the claim depends on newly available 

evidence or on a change in the law that has been made 

retroactively applicable to final judgments. (Id. at p. 775.) In 

the rare instance in which the petitioner is able to adequately 

justify not having raised the claim earlier, the successiveness 

bar does not apply. (Ibid.)

If there is no adequate justification for the petitioner’s 

failure to raise the claim earlier, the court proceeds to the second 

step of the analysis. At that step, the court must generally apply 

the successiveness bar to preclude consideration of the claim. 

But there is narrow exception for claims alleging “facts 

demonstrating that a fundamental miscarriage of justice has 

occurred.” (Clark, supra, 5 Cal.4th at p. 775.) In Clark, we 

identified four situations in which the fundamental miscarriage 

exception is satisfied: (1) a highly prejudicial error of 

constitutional magnitude; (2) the petitioner’s actual innocence; 

(3) presentation in a capital trial of a grossly misleading and 

highly prejudicial profile of the petitioner; or (4) conviction or 

sentencing under an invalid statute. (Id. at pp. 797–798; accord, 

Reno, 55 Cal.4th at pp. 455–456, 472; Robbins, supra, 18 Cal.4th 

at pp. 788, fn. 9, 811.) To determine whether a habeas petitioner 

should be given a second chance to make a claim that could have 

been made earlier, a court considers whether the petitioner has 

made a showing that would bring the claim within this four-part 
In re FRIEND

Opinion of the Court by Kruger, J.

10

fundamental miscarriage exception. If so, the court proceeds to 

consider the merits; if not, then not.

B.

The successiveness provisions of Proposition 66 changed 

existing law by forbidding courts from considering successive 

petitions that are unaccompanied by a showing of actual 

innocence or ineligibility for the death penalty. This is a more 

stringent standard than any standard applicable under 

traditional habeas corpus law. The issue before us concerns the 

scope of the change. A broad reading of Proposition 66 would 

apply its stringent successiveness standard to all second or 

subsequent capital habeas petitions, thereby eliminating the 

traditional carveout for claims based on newly available 

evidence and other claims that could not have been raised 

earlier. A narrower, alternative reading of Proposition 66 would 

apply this successiveness standard only to those petitions 

raising repetitive or pretermitted claims — that is, those claims 

that are generally subject to the traditional successiveness bar. 

Under this narrower reading, Proposition 66 preserves the 

traditional two-step inquiry described in case law, but at the 

second step it replaces the four-part fundamental miscarriage of 

justice exception with just two grounds — actual innocence or 

death ineligibility — that will justify giving a habeas petitioner 

a second chance to raise a claim that was unjustifiably omitted 

from a prior petition.

On this question, the parties are in agreement; each 

maintains that Proposition 66’s stringent successiveness 

standard does not apply to claims that could not have been 

raised in earlier petitions. Friend contends that this narrower 

reading of Proposition 66 is not only consistent with the usual 
In re FRIEND

Opinion of the Court by Kruger, J.

11

use of the term “successive” in habeas corpus law, but also 

avoids serious questions about the constitutionality of a law that 

would bar potentially meritorious habeas claims that could not 

have been raised in prior petitions. The Attorney General 

concurs. He observes that though the term “successive” might 

naturally be read in a colloquial sense to encompass all petitions 

subsequent to the first, Friend’s narrower reading is the better 

one because it avoids serious constitutional doubts. 

By contrast, two amici curiae — the Criminal Justice 

Legal Foundation (CJLF) and a group of legal scholars (the 

Constitutional Law Amici) — argue that the term “successive”

in Proposition 66 should be broadly construed to refer to any 

petition after the petitioner’s first.

4

 These amici divide, though,

on the constitutionality of sections 1509(d) and 1509.1(c) so 

construed. The Constitutional Law Amici argue that insofar as 

Proposition 66 eliminates the traditional safety valve for claims 

that could not have reasonably been raised earlier, the measure 

violates habeas petitioners’ federal and state due process rights, 

as well as the California Constitution’s prohibition on 

suspension of the writ of habeas corpus (Cal. Const., art I, § 11). 

CJLF, by contrast, urges that Proposition 66’s limitations on 

successive petitions, broadly construed, are “clearly

constitutional.”

When we interpret statutes, we usually begin by 

considering the ordinary and usual meaning of the law’s terms, 

viewing them in their context within the statute. (People v. 

4 A third amicus curiae brief, filed on behalf of the Offices of 

the Federal Public Defenders for the Central and Eastern 

Districts of California, takes the same interpretive position as 

the parties. 
In re FRIEND

Opinion of the Court by Kruger, J.

12

Colbert (2019) 6 Cal.5th 596, 603.) Here, as both the Attorney 

General and amici curiae note, dictionaries define the term 

“successive” to mean “[f]ollowing in uninterrupted order; 

consecutive.” (American Heritage Dict. (4th ed. 2000) p. 1728.) 

If this dictionary definition controls, then Proposition 66’s 

restrictions on successive petitions would apply without 

exception to any habeas petition that follows the initial habeas 

petition.

When, however, a term has developed a particular 

meaning in the law, we generally presume the legislative body 

used the term in that sense rather than relying on ordinary 

usage. “It is a well-recognized rule of construction that after the 

courts have construed the meaning of any particular word, or 

expression, and the legislature subsequently undertakes to use 

these exact words in the same connection, the presumption is 

almost irresistible that it used them in the precise and technical 

sense which had been placed upon them by the courts.” (City of 

Long Beach v. Payne (1935) 3 Cal.2d 184, 191; accord, In re 

Derrick B. (2006) 39 Cal.4th 535, 540; People v. Lawrence (2000) 

24 Cal.4th 219, 231 [principle applies to statutes adopted 

through initiative]; see Pen. Code, § 7, subd. (16) [“Words and 

phrases . . . as may have acquired a peculiar and appropriate

meaning in law, must be construed according to such peculiar 

and appropriate meaning.”].)

As explained above, successiveness restrictions have a 

long history in habeas corpus law, and the concept of 

successiveness has acquired a particular meaning in that

context. We consider that legal background in discerning the 

meaning of the restrictions on successive petitions in 

Proposition 66. (Cf. Panetti v. Quarterman (2007) 551 U.S. 930, 

943 [the term “second or successive” as used in a federal habeas 
In re FRIEND

Opinion of the Court by Kruger, J.

13

statute “is not self-defining,” but “takes its full meaning from 

our case law” applying general habeas corpus principles].)

California habeas law traditionally has not imposed 

blanket restrictions on the consideration of every petition filed 

after an initial petition, as the dictionary definition of the term 

“successive” might suggest. The traditional successiveness bar 

instead prevents a habeas corpus petitioner from abusing the 

writ process by presenting claims in a repetitive or piecemeal 

manner. (Briggs, supra, 3 Cal.5th at p. 836, fn. 14.) This means

that a claim will not be barred as successive, even though it may 

be presented in a second or subsequent habeas petition, if the 

petitioner offers adequate justification for the failure to present 

a particular claim in an earlier petition. (Clark, supra, 5 Cal.4th 

at p. 774.) Though it is unusual for a petitioner to make the 

required showing, we have said consideration of such a claim is 

ordinarily warranted “where 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.” (Id. at p. 775.) In addition, claims 

based on a change in the law that is retroactively applicable to 

final judgments will be considered if promptly asserted and if 

application of the former rule is shown to have been prejudicial. 

(Ibid.) And finally, the ineffective assistance of prior counsel 

may justify raising a claim in a subsequent petition. (Id. at 

p. 780.)5 

5 To justify a second or subsequent filing based on prior 

ineffective assistance of counsel, the petitioner must “allege 

with specificity the facts underlying the claim that the 

inadequate presentation of an issue or omission of any issue 
In re FRIEND

Opinion of the Court by Kruger, J.

14

We have mainly used the term “successive petition” to 

refer specifically to a petition subject to the successiveness 

bar — that is, one raising claims that could have been presented 

in a previous petition. (Briggs, supra, 3 Cal.5th at p. 836, 

fn. 14.) In Clark, for example, we used the term “successive 

petitions” as a shorthand for subsequent petitions “seeking 

relief on the basis of the same set of facts” or “raising claims that 

could have been raised in a prior petition.” (Clark, supra, 5 

Cal.4th at p. 770.) We explained that “[e]ntertaining the merits 

of successive petitions is inconsistent with our recognition that 

delayed and repetitious presentation of claims is an abuse of the 

writ” (id. at p. 769), and that the consideration of such petitions 

“unreasonably delays execution of judgment” and “waste[s]

scarce judicial resources” (id. at p. 770). We went on to explain 

that the same is not true of second or subsequent petitions 

raising claims that could not reasonably have been raised 

before. (Id. at pp. 774–775.)

6 Echoing this point in Reno, we 

observed that “ ‘[e]ntertaining the merits of successive petitions 

is inconsistent with our recognition that delayed and repetitious 

presentation of claims is an abuse of the writ.’ ” (Reno, supra, 

reflects incompetence of counsel . . . . Moreover, mere omission 

of a claim ‘developed’ by new counsel does not raise a 

presumption that prior habeas corpus counsel was incompetent, 

or warrant consideration of the merits of a successive petition.” 

(Clark, supra, 5 Cal.4th at p. 780.)

6

In connection with Clark’s substantive exception for 

fundamental miscarriages of justice, we also explained that 

“[t]hese claims will be considered on their merits even though 

presented for the first time in a successive petition or one in 

which the delay has not been justified” (Clark, supra, 5 Cal.4th 

at p. 798), apparently using “successive” to refer to claims whose 

omission from a prior petition has not been justified. 
In re FRIEND

Opinion of the Court by Kruger, J.

15

55 Cal.4th at p. 455.) And we used the term “successive” in the 

same way in Robbins, where we drew a distinction between 

“ ‘subsequent’ ” petitions and “ ‘successive’ ” ones: “[C]laims 

presented in a ‘subsequent’ petition that should have been

presented in an earlier filed petition will be barred as 

‘successive’ unless the petitioner ‘adequately explains’ his or her 

failure to present all claims in the earlier filed petition.” 

(Robbins, supra, 18 Cal.4th at p. 788, fn. 9.)

True, our cases have not always been consistent in their 

use of terminology. As the Attorney General and amici curiae 

point out, we have also sometimes used the term “successive” to 

refer to any second or subsequent petition, while referring to 

those petitions subject to the successiveness bar as both

successive and unjustified. (E.g., Clark, supra, 5 Cal.4th at 

p. 774 [“[b]efore considering the merits of a second or successive 

petition, a California court will first ask whether the failure to 

present the claims underlying the new petition in a prior 

petition has been adequately explained, and whether that 

explanation justifies the piecemeal presentation of the 

petitioner’s claims”]; Reno, supra, 55 Cal.4th at p. 517 [referring 

to the court’s “proposed limit of 50 pages for successive 

petitions”].)

Despite these variations in our terminology, however, the 

substantive principle has remained constant: When we have 

barred a claim as “successive,” it is because we have concluded 

that the claim was omitted from an earlier petition without 

justification, and its presentation therefore constitutes abuse of 

the writ process. We have not, by contrast, considered the filing 

of a claim that could not have reasonably been raised in an 

earlier petition to be an abuse of the writ subject to the bar on 

successive petitions.
In re FRIEND

Opinion of the Court by Kruger, J.

16

Amici curiae acknowledge the scope of the successiveness 

bar in California habeas jurisprudence, but contend that 

statutory context makes clear Proposition 66 voters intended a 

distinctly different approach. Amici emphasize that Penal Code 

sections 1509 and 1509.1 refer only to “initial” and “successive” 

petitions. Interpreting “successive” narrowly to preserve the 

traditional carveout for nonabusive claims, they say, would 

require us to recognize a third category consisting of second or 

subsequent habeas petitions that are treated as nonsuccessive. 

Amici observe that while Proposition 66 contains certain 

provisions regarding the timeliness of “initial” petitions and 

procedures for appealing both “initial” and “successive”

petitions, it contains no similar provisions pertaining to cases in 

this third category. From this, amici deduce that no such third 

category was intended.

It is possible, as amici curiae say, that Proposition 66 

refers only to “initial” and “successive” habeas corpus petitions 

because voters believed that all second or subsequent petitions 

should be treated as “successive” — and therefore barred unless 

the petitioner is able to show actual innocence or ineligibility for 

death, regardless of whether the petitioner could have raised the 

claim earlier. But it is equally possible that the voters simply 

thought it unnecessary to set out special provisions to govern 

the relatively rare situation in which a second or subsequent 

habeas corpus petition raises claims that could not reasonably 

have been presented in an earlier petition.

Amici curiae’s argument would have more force if we were 

convinced that voters intended Proposition 66 to supply 

comprehensive instructions for the handling of capital habeas 

petitions, but we are not so convinced. The question of how 

timeliness of a subsequent but nonsuccessive petition may be 
In re FRIEND

Opinion of the Court by Kruger, J.

17

determined is beyond the scope of this case, but suffice it to say 

that Proposition 66 did not provide a new timeliness rule for any

kind of petition other than initial petitions (and nothing in the 

measure appears to preclude continued application of the 

traditional timeliness standards that have been developed and 

applied in this court’s habeas cases (see Robbins, supra, 18 

Cal.4th at p. 780)). And although Proposition 66 may not speak 

specifically to procedures for appealing rulings on subsequent 

but nonsuccessive petitions, its appellate provisions appear

capable of being applied to such petitions, as explained in 

greater detail below. (See pt. IV., post.) Simply put, the fact 

that Proposition 66 does not contain explicit instructions for the 

handling of subsequent nonsuccessive petitions does not mean 

that no such category of petitions exists. 

Amici curiae also point to the use of the term “successive” 

in a different subdivision of Penal Code section 1509.1 as 

evidence that the term was meant to refer to any and all 

petitions following the first. Subdivision (a) of section 1509.1, 

which addresses appeals from rulings on initial petitions, 

specifies that “[a] successive petition shall not be used as a 

means of reviewing a denial of habeas relief.” Amici contend 

that here, “successive” is used to mean any petition following the

initial petition. Amici contend the term must mean the same 

thing everywhere else it appears in the statute, including 

sections 1509(d) and 1509.1(c).

We are unpersuaded. As we explained in Briggs, Penal 

Code section 1509.1, subdivision (a), is designed to substitute an 

appellate procedure for the usual means for obtaining review of 

habeas corpus denials — namely, “filing a new habeas corpus 

petition in a higher court” (Briggs, supra, 3 Cal.5th at p. 836). 

For this limited purpose the statute uses the term “successive
In re FRIEND

Opinion of the Court by Kruger, J.

18

petition” to refer to what our cases would typically call a “ ‘new 

petition’ . . . seeking review of a lower court’s ruling.” (Id. at

p. 836, fn. 14.) This distinctive usage of the term “successive 

petition” does not compel any particular conclusion about the

meaning of the term as it appears in the context of substantive 

restrictions on lower courts’ ability to issue rulings in the first 

instance. 

Finally, CJLF argues that voters could not have intended 

to preserve the overall structure of the traditional 

successiveness bar because sections 1509(d) and 1509.1(c) refer 

to successive “petitions,” while our precedents have applied the 

successiveness bar on a claim-by-claim basis. That is to say, 

under our case law, courts may consider the merits of one or 

more claims in a subsequent petition even if other claims in the 

same petition are procedurally barred as successive. (Reno,

supra, 55 Cal.4th at p. 452; Robbins, supra, 18 Cal.4th at p. 788, 

fn. 9; Clark, supra, 5 Cal.4th at pp. 768, 780–782.) But context 

makes clear that Proposition 66’s restrictions operate in much 

the same way. When a petitioner files a “successive” petition, 

section 1509(d) calls for a determination whether “the petitioner 

has a substantial claim of actual innocence or ineligibility.” 

(§ 1509(d), italics added.) And when the petitioner seeks to 

appeal the denial of relief, section 1509.1(c) provides for a 

certificate of appealability only where the petition states “a 

substantial claim for relief, which shall be indicated in the 

certificate,” and limits appellate jurisdiction to “the claims

identified in the certificate and any additional claims added by 

the court of appeal within 60 days of the notice of appeal.” 

(§ 1509.1(c), italics added.) The statutes thus mark no 

fundamental departure from traditional habeas law in this 

regard.
In re FRIEND

Opinion of the Court by Kruger, J.

19

In short, the text of the statute contains no definitive

indication that by introducing a new stringent standard for the 

presentation of claims in “successive” petitions, voters intended 

to eliminate the traditional carveout for claims that could not 

feasibly have been presented earlier. Given the legal backdrop 

against which voters enacted Proposition 66, it is entirely 

plausible that voters intended Proposition 66’s stringent 

standard for considering successive petitions to capture only 

petitions raising claims that would have traditionally been 

considered abusive and therefore subject to the successiveness 

bar — that is, claims that were omitted from prior habeas 

petitions without justification.

Friend, joined by the Attorney General, argues that this 

narrower understanding of Proposition 66’s successiveness 

provisions is not only plausible, but compelled by the canon of 

constitutional avoidance. This rule of interpretation instructs 

that “[i]f a statute is susceptible of two constructions, one of 

which will render it constitutional and the other 

unconstitutional in whole or in part, or raise serious and 

doubtful constitutional questions, the court will adopt the 

construction which, without doing violence to the reasonable 

meaning of the language used, will render it valid in its entirety, 

or free from doubt as to its constitutionality, even though the 

other construction is equally reasonable. [Citations.] The basis 

of this rule is the presumption that the Legislature intended, 

not to violate the Constitution, but to enact a valid statute 

within the scope of its constitutional powers.” (Miller v. 

Municipal Court (1943) 22 Cal.2d 818, 828; accord, People v. 

Lopez (2020) 9 Cal.5th 254, 276 [applying canon to 

interpretation of initiative measure]; People v. Engram (2010) 
In re FRIEND

Opinion of the Court by Kruger, J.

20

50 Cal.4th 1131, 1161; People v. Superior Court (Romero) (1996) 

13 Cal.4th 497, 509.) 

Friend contends that reading “successive” petition in 

section 1509(d) as referring broadly to any second or subsequent 

petition would raise significant constitutional concerns insofar 

as it would bar relief for serious constitutional violations even 

“where the petitioner did not discover the basis of a 

constitutional violation despite acting diligently.” This broad 

reading would, for example, foreclose a claim based on 

revelations that the prosecutor failed to disclose evidence that 

would have strongly supported the defendant’s case in 

mitigation at the penalty phase. Under traditional standards, 

we would order a new penalty phase if the withholding of the 

evidence could be said to undermine confidence in the death 

verdict.

7

 But under the broad reading of section 1509(d), the 

claim would be barred because it neither establishes the 

petitioner’s actual innocence nor ineligibility for the death 

penalty.

The broad reading of section 1509(d) would likewise 

foreclose a claim based on newly available evidence of trial 

misconduct by jurors, the prosecutor, defense counsel, or the 

trial judge. Such misconduct might be serious enough to call 

into question the validity of the judgment, yet fail to meet 

7 See, e.g., In re Bacigalupo (2012) 55 Cal.4th 312, 315–317 

(ordering relief from judgment of death based on claim in second 

state habeas corpus petition that prosecution suppressed 

evidence that petitioner had committed his crime under duress, 

which would have supported petitioner’s penalty phase case in 

mitigation).
In re FRIEND

Opinion of the Court by Kruger, J.

21

section 1509(d)’s innocence or ineligibility standard.8 Similarly, 

posttrial scientific developments might yield evidence that 

critically undermines confidence in the jury verdict without 

establishing innocence or death ineligibility.

9

Friend further maintains the broad reading of “successive” 

would encompass potentially meritorious claims that could not 

have been brought in the initial petition for procedural 

reasons — such as a petition challenging an execution method, 

which would have been deemed premature at the time of the 

first petition10 — or because they arise from a change in 

applicable law.

11 Finally, Friend points to the possibility of 

8 See, e.g., Tharpe v. Sellers (2018) ___ U.S. ___, ___ [138 

S.Ct. 545, 548] (juror’s racist view of defendant discovered more 

than seven years after trial); Foster v. Chatman (2016) 578 U.S. 

___, ___–___ [136 S.Ct. 1737, 1743–1744] (evidence of 

prosecutor’s discriminatory use of peremptory challenges 

discovered through public records request); Bracy v. 

Gramley (1997) 520 U.S. 899, 906–907 (trial judge indicted for 

bribery about 10 years after the petitioner’s trial); In re 

Gay (2020) 8 Cal.5th 1059, 1084 (relief granted on second 

petition in part because attorney-client relationship was 

“poisoned at its root by fraud”).

9 See, e.g., In re Richards (2016) 63 Cal.4th 291, 305 (10 

years after trial, prosecution expert recanted his trial testimony 

identifying the mark on the victim’s arm as resulting from a bite 

by defendant).

10 See People v. DePriest (2007) 42 Cal.4th 1, 61 (on appeal, 

claims of “[a]lleged imperfections and illegalities in the 

execution process that may or may not exist when [defendant’s]

death sentence is implemented are premature”).

11 See, e.g., In re Richards, supra, 63 Cal.4th at page 294, 

footnote 2 (“Because of the change in the applicable law 

concerning the definition of false evidence, the petition is not
In re FRIEND

Opinion of the Court by Kruger, J.

22

meritorious claims of error, not going to innocence or 

ineligibility, that counsel for the petitioner incompetently failed 

to include in the first petition. As explained earlier, Clark’s 

successiveness rule treats counsel’s ineffective assistance, if 

established, as good cause for raising the issue in a subsequent 

petition. (See ante, at p. 13.) The broad reading of section 

1509(d), by contrast, would bar the petitioner from ever raising 

the issue.

In Friend’s view, interpreting section 1509(d) to preclude 

all these categories of claims would raise serious questions as to 

whether Proposition 66 deprives condemned prisoners of due 

process and equal protection of the laws and constitutes an 

impermissible suspension of the writ of habeas corpus under the 

state and federal Constitutions. The Attorney General agrees

that the broad reading of section 1509(d) would raise serious 

constitutional questions, and for that reason is to be avoided. 

Although the Constitutional Law Amici agree with CJLF that 

section 1509(d) should be interpreted broadly, they contend that 

the statute, so interpreted, is in fact unconstitutional because it 

screens out meritorious claims that could not have been raised 

in the earlier petition. Amicus curiae CJLF, on the other hand, 

takes the view that the broad reading of section 1509(d) raises 

no serious constitutional doubts. 

We need not definitively resolve the constitutional debate 

here. For present purposes it is enough to observe that the 

constitutional questions Friend raises are both novel and 

serious. The California Constitution has protected the right to 

subject to the procedural bar of successiveness.”); see Reno, 

supra, 55 Cal.4th at page 466 (“A change in the law will also 

excuse a successive or repetitive habeas corpus petition.”).
In re FRIEND

Opinion of the Court by Kruger, J.

23

seek relief by habeas corpus since our state’s founding. (Cal. 

Const. of 1849, art. I, § 5; see Clark, supra, 5 Cal.4th at p. 764.) 

Habeas, we have explained, “often represents a prisoner’s last 

chance to obtain judicial review” of a criminal conviction. (Reno, 

supra, 55 Cal.4th at p. 450.) The law preserves this avenue to 

relief in service of principles of substantial justice: “ ‘Despite the 

substantive and procedural protections afforded those accused 

of committing crimes, the basic charters governing our society 

wisely hold open a final possibility for prisoners to prove their 

convictions were obtained unjustly.’ ” (Ibid.) And although we 

have long limited piecemeal and repetitive claims as an abuse of 

the writ, the same principles of substantial justice have led us 

to leave “open a ‘safety valve’ for those rare or unusual claims 

that could not reasonably have been raised at an earlier time.” 

(Id. at p. 452.) Our rules have thus sought to “permit the 

resolution of legitimate claims in the fairest and most efficacious 

manner possible,” without barring legitimate claims raised 

belatedly through no fault of the petitioner. (Ibid.)

If Proposition 66 were construed to preclude even claims 

of constitutional error that could not have been raised earlier 

with reasonable diligence, it would mark the first time that the 

law has closed that long-standing safety valve for newly 

available claims. The statute would instead apply the same 

exacting innocence or ineligibility standard to all claims raised 

in a second or successive petition, whether justifiably or not. It 

is a significant question whether such a drastic restriction on 

the effectiveness of the habeas corpus remedy would comport 

with the principles of substantial justice that lie at the core of 

our state Constitution’s habeas protections.

The due process implications of this approach are likewise 

substantial. Under the broad reading of section 1509(d), a
In re FRIEND

Opinion of the Court by Kruger, J.

24

capital prisoner who discovers that the prosecution has 

suppressed material mitigation evidence, or that one of the 

convicting jurors repeatedly expressed racial or other bias 

against him or her, would have no recourse if the persons 

involved managed to conceal the information long enough. To 

foreclose such claims by capital prisoners raises substantial 

questions of procedural fairness. 

When we consider procedural due process claims under 

the California Constitution, we weigh four factors: “ ‘(1) the 

private interest that will be affected by the official action; (2) the 

risk of an erroneous deprivation of such interest through the 

procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; (3) the government’s interest, 

including the function involved and the fiscal and 

administrative burdens that the additional or substitute 

procedural requirement would entail; and (4) the dignitary 

interest in informing individuals of the nature, grounds, and 

consequences of the action and in enabling them to present their 

side of the story before a responsible government official.’ ” 

(People v. Allen (2008) 44 Cal.4th 843, 862–863.) Considering 

the weighty private interest at stake in a capital habeas corpus 

proceeding, the risk of error created when potentially 

meritorious claims are barred even if presented as promptly as 

reasonably possible upon discovery, and the dignitary 

significance of ensuring the validity of death judgments before 

execution, it is at least questionable whether governmental 

interests in finality of judgments and conservation of judicial 

resources can justify a rule barring all but a very narrow class 
In re FRIEND

Opinion of the Court by Kruger, J.

25

of claims presented in second or subsequent petitions regardless 

of whether barred claims could have been presented earlier.12

Other state courts have concluded that similar 

constitutional principles forbid categorical restrictions on the 

presentation of habeas claims that could not reasonably have 

been raised earlier. (People v. Germany (Colo. 1983) 674 P.2d 

345, 353 [statute barring all collateral challenges commenced 

after a period of limitation violates state and federal due process 

in that it “makes no attempt to distinguish between those 

constitutional challenges which could and should have been 

asserted in a timely manner and those which, due to special 

circumstances or causes, could not have been raised within the 

applicable period of limitation”]; Lott v. State (2006) 334 Mont. 

270, 278–279 [precluding invalid-conviction claim that is based 

on an intervening statutory interpretation would violate the 

state Constitution’s suspension clause].) We need not decide 

here whether we would follow these cases in applying the 

California Constitution; in either event, the decisions 

underscore the point that the constitutional questions at stake 

are substantial.

Amicus curiae CJLF argues that the United States

Supreme Court’s decision in Felker v. Turpin (1996) 518 U.S. 

651 (Felker) disposes of any questions that might arise about the 

scope of Proposition 66’s successiveness provisions. The high 

court in Felker considered the constitutionality of a provision of

12 While California’s constitutional due process clause has 

generally been understood as requiring much the same process 

as the federal Constitution, we retain authority to construe the 

state charter independently. (People v. Allen, supra, 44 Cal.4th 

at p. 863, fn. 14.) 
In re FRIEND

Opinion of the Court by Kruger, J.

26

the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA; Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214) 

that generally requires dismissal of “second or successive” 

habeas applications raising claims based on newly discovered 

evidence except where “(i) the factual predicate for the claim 

could not have been discovered previously through the exercise 

of due diligence; and [¶] (ii) the facts underlying the claim, if 

proven and viewed in light of the evidence as a whole, would be 

sufficient to establish by clear and convincing evidence that, but 

for constitutional error, no reasonable factfinder would have 

found the applicant guilty of the underlying offense.” (28 U.S.C. 

§ 2244(b)(2)(B).) The court rejected challengers’ argument that 

applying this standard to newly available claims constituted an 

impermissible suspension of the writ of habeas corpus. (U.S. 

Const., art. I, § 9.) The court reasoned that the new restrictions

constitute “a restraint on what is called in habeas corpus 

practice ‘abuse of the writ,’ ” a doctrine subject to both judicial 

and legislative evolution, and that “[t]he added restrictions 

which the Act places on second habeas petitions are well within 

the compass of this evolutionary process.” (Felker, at p. 664.)

We are unpersuaded that Felker disposes of the 

constitutional questions surrounding section 1509(d). For one 

thing, section 1509(d) differs in certain respects from the federal 

statute on review in Felker, and the high court in Felker had no 

occasion to opine on the full range of questions section 1509(d) 

raises.13 But more fundamentally, Felker addressed only the 

13 For instance, the broad reading of section 1509(d) would 

ordinarily mandate dismissal of any subsequent petition raising 

claims based on intervening changes in the law. Felker had no 
In re FRIEND

Opinion of the Court by Kruger, J.

27

suspension clause of the United States Constitution. It did 

not — indeed, could not — provide definitive guidance on 

questions arising under the habeas corpus or due process 

provisions of the California Constitution.

In California law, procedural bars to habeas corpus claims 

serve an important interest in finality of judgments. But these

procedural bars have always been subject to exceptions “designed 

occasion to consider the implications of such a limitation, since 

AEDPA makes an explicit exception for claims based on new 

rules of constitutional law made retroactive on collateral review. 

(28 U.S.C. § 2244(b)(2)(A).)

Felker also concerned claims that could, in fact, have been 

raised earlier. (See Felker, supra, 518 U.S. at pp. 657–658; see 

also Felker v. Turpin (11th Cir. 1996) 83 F.3d 1303, 1306 

[“Felker does not contend that the factual predicate for this 

claim could not have been discovered previously through the 

exercise of due diligence.”].) The high court in Felker had no 

reason to address the constitutional implications of preventing 

a habeas petitioner from raising a substantial constitutional 

claim at the first available opportunity, as the broad reading of 

section 1509(d) would do. Subsequent federal cases have 

addressed various questions concerning the application of 

AEDPA’s second-or-successive rules in circumstances where the 

petitioner could not reasonably have raised a particular claim 

earlier. (See, e.g., Panetti v. Quarterman, supra, 551 U.S. at 

pp. 945–946 [holding that AEDPA’s rules do not apply to claims 

of incompetence to be executed, which are typically not ripe until 

well after the initial habeas petition is filed, noting that 

applying the second-or-successive standards to such claims 

would mean “petitioners ‘run the risk’ . . . of ‘forever losing their 

opportunity for any federal review’ ”]; Scott v. U.S. (11th Cir. 

2018) 890 F.3d 1239, 1247–1258 [criticizing circuit precedent 

holding that claims under Brady v. Maryland (1963) 373 U.S. 83 

are subject to AEDPA’s gatekeeping provisions].) In the end, 

however, it bears repeating that these cases do not bind us in 

our interpretation of state law.
In re FRIEND

Opinion of the Court by Kruger, J.

28

to ensure fairness and orderly access to the courts.” (Reno, supra, 

55 Cal.4th at p. 452.) A successiveness bar lacking an exception 

for claims that could not with reasonable diligence have been 

presented in an earlier petition threatens the guarantee of fair 

access to courts that has traditionally been central to habeas 

corpus procedure in this state, and in so doing raises significant 

questions under the California Constitution. As between the two 

possible readings of section 1509(d), we presume voters did not 

intend the interpretation that raises substantial constitutional 

doubts.

As amici curiae CJLF and the Constitutional Law Amici

both argue, it is clear that voters did intend to expedite habeas 

corpus proceedings in capital cases. (Briggs, supra, 3 Cal.5th at 

pp. 823–825.) But while it may be true that a broad reading of 

section 1509(d) would serve this purpose by barring more 

claims, that is not sufficient reason to adopt the reading. The 

narrower, alternative reading also serves voters’ purposes. 

Even if construed as incorporating the meaning of “successive” 

developed in our case law, section 1509(d) will limit subsequent

habeas corpus petitions through its replacement of Clark’s 

substantive exception for fundamental miscarriages of justice 

with a narrower exception limited to claims of innocence or 

ineligibility.14 Section 1509.1(c)’s certificate requirement for 

successive claims will also operate as an additional procedural 

check on potentially abusive petitions, even if its scope is not as 

broad as possible. And of course other provisions of Penal Code 

sections 1509 and 1509.1 also tend to speed up the process of 

capital habeas corpus review. (See Pen. Code, § 1509, subds. (a) 

14 No issue regarding the constitutionality of this change is 

raised here, and we express no opinion on the matter.
In re FRIEND

Opinion of the Court by Kruger, J.

29

[section provides exclusive procedure for collateral attack; 

petitions generally to be first adjudicated in sentencing court], 

(c) [time limit for filing initial petition] & (f) [calling for 

expedition in deciding and setting two-year goal]; id., § 1509.1, 

subds. (a) [providing for review by appeal filed within 30 days of 

decision] & (b) [limiting issues to be addressed on appeal].) 

In any event, “no legislation pursues its purposes at all 

costs. Deciding what competing values will or will not be 

sacrificed to the achievement of a particular objective is the very 

essence of legislative choice — and it frustrates rather than 

effectuates legislative intent simplistically to assume 

that whatever furthers the statute’s primary objective must be 

the law.” (Rodriguez v. United States (1987) 480 U.S. 522, 525–

526; accord, e.g., Sonic-Calabasas A, Inc. v. Moreno (2013) 57 

Cal.4th 1109, 1167.) We see no evidence that Proposition 66 was 

intended to speed up the process of review to the maximum 

extent possible, no matter the costs to the principles of 

substantial justice that lie at the core of the Constitution’s 

habeas corpus and due process guarantees. Rather, stating its 

purposes in uncodified findings and declarations, Proposition 66 

was specifically focused on curbing “frivolous and unnecessary 

claims” that have “wasted taxpayer dollars and delayed justice.” 

(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 

66, § 2, subd. 7, p. 213 (Voter Information Guide).) Making a 

claim of constitutional violation that could not reasonably have 

been made in an earlier petition is not by its nature a frivolous, 

unnecessary, or wasteful act. We cannot assume the voters were 

so single-handedly determined to expedite capital habeas corpus 

proceedings that they would pass a statute systematically 
In re FRIEND

Opinion of the Court by Kruger, J.

30

precluding many such claims and thereby raising serious doubts 

about the measure’s constitutionality.15

Amici curiae turn to the ballot materials to support their 

view. But Proposition 66’s effects on habeas corpus litigation 

did not figure heavily in the ballot materials, and nothing in the 

ballot arguments for and against the measure sheds light on the 

question here. 

The analysis provided by the Legislative Analyst did touch 

on the topic of limits on successive petitions (though without

using that particular term). Discussing restrictions on habeas 

corpus in light of Proposition 66’s newly introduced time limits, 

the analysis stated: “In order to help meet the above time 

frames, the measure places other limits on legal challenges to 

death sentences. For example, the measure does not allow 

additional habeas corpus petitions to be filed after the first 

petition is filed, except in those cases where the court finds that 

the defendant is likely either innocent or not eligible for the 

death sentence.” (Voter Information Guide, supra, analysis of 

Prop. 66 by Legis. Analyst, p. 106.) And in its discussion of fiscal 

15 CJLF also argues from the initiative’s purpose but focuses 

on how federal court proceedings may be affected by the 

interpretive question here. The gist of the argument is that a 

broad reading of section 1509(d)’s bar on successive petitions, by 

providing federal district courts with grounds for considering 

state prisoners’ petitions defaulted without issuing stays for 

exhaustion in state court, will tend to expedite postconviction 

proceedings overall. We express no opinion as to whether 

section 1509(d), however construed, will or would have this 

effect. As an interpretive matter, the argument is unavailing 

because neither the text of section 1509(d) nor anything in the 

materials presented to the voters indicate Proposition 66 was 

intended to affect federal court proceedings in this manner.
In re FRIEND

Opinion of the Court by Kruger, J.

31

effects, the analysis observed that “the limits on the number of 

habeas corpus petitions that can be filed” could reduce the time 

and resources spent on postconviction proceedings in capital 

cases. (Id. at p. 107.) Neither of these passages, however, 

brought to voters’ attention the specific problem of claims that 

could not reasonably have been brought in a prior petition. 

Though the analysis suggests the proposed statutes would place 

limits on the number of habeas corpus petitions that a 

condemned person could file, it does not establish the voters 

intended the measure as operating so strictly as to preclude a 

condemned prisoner from seeking relief on grounds of a 

prejudicial constitutional error that, even with reasonable 

diligence, could not have been discovered and presented earlier. 

Again, given the significant constitutional doubts that would be 

raised by such a reading, and in the absence of any substantial 

evidence to the contrary, we presume this was not the voters’ 

intent.

We instead conclude that the voters’ intent in using the 

term “successive” in section 1509(d) was to build on, rather than 

fundamentally reconfigure, the concept of “successiveness” as it 

has developed in the case law. Rather than presume the voters 

intended a sea change in habeas law that would, for the first 

time, eliminate the established safety valve for claims that could 

not have reasonably been raised earlier, we instead conclude 

they determined to tighten the standards courts have developed 

to deter abuse of the writ of habeas corpus by making it harder 

for capital petitioners to earn a second chance to raise claims 

they could, and should, have raised earlier.
In re FRIEND

Opinion of the Court by Kruger, J.

32

III.

We turn next to the question of whether Proposition 66’s 

limits on successive petitions are applicable where, as here, the 

petitioner’s previous habeas corpus petition was filed before 

Proposition 66 took effect. We conclude they are.

As a rule, courts presume that newly enacted legislation 

is intended to operate prospectively and not retroactively. (See, 

e.g., Californians for Disability Rights v. Mervyn’s, LLC (2006) 

39 Cal.4th 223, 230; Evangelatos v. Superior Court (1988) 44 

Cal.3d 1188, 1208–1209.) Friend contends that in cases where 

the first petition was filed before Proposition 66, applying 

section 1509(d) to a subsequent petition would constitute

retroactive application because it would attach new 

consequences to the preenactment act of filing the first petition. 

(See Landgraf v. USI Film Products (1994) 511 U.S. 244, 270

(Landgraf) [a statute operates retroactively when it “attaches 

new legal consequences to events completed before its 

enactment”].) Friend further argues that section 1509(d) does 

not manifest an intent for retroactive application sufficient to 

overcome the presumption against retroactive statutory 

changes. The Attorney General disagrees. He argues that there 

is no question of retroactive application when section 1509(d) is 

applied to petitions filed after Proposition 66’s effective date. 

But in any event, the text of Proposition 66 manifests the voters’ 

intent to limit all successive capital petitions, regardless of 

when the first petition was filed. 

The parties have briefed this issue as arising principally if 

section 1509(d) is understood to categorize all subsequent 

petitions as successive. Under that interpretation, the statute 

would treat claims in subsequent petitions quite differently 
In re FRIEND

Opinion of the Court by Kruger, J.

33

than under prior law, since it would eliminate the 

successiveness bar’s traditional carveout for claims that could 

not reasonably have been presented earlier. In part II., ante, we

adopt a different reading of section 1509(d), under which it 

applies only to claims that would have been deemed successive 

under prior law. But Friend argues that even so construed,

section 1509(d) operates retroactively when the prior petition 

predated Proposition 66, because section 1509(d) restricts the

types of claims that may be entertained in a successive petition, 

replacing Clark’s fundamental-miscarriage-of-justice exception 

with a narrower one limited to claims of innocence or 

ineligibility.

16

 

Employing current statutory procedures in current 

litigation is not ordinarily considered a retroactive application 

of the statute, even where the litigation arises from events 

antedating the statute’s effectiveness. (Californians for 

Disability Rights v. Mervyn’s, LLC, supra, 39 Cal.4th at p. 231.) 

But in some circumstances a formally procedural rule may 

operate to retroactively affect substantive rights and 

expectations. Broadly speaking, whether a statute operates 

retroactively — and therefore impermissibly, absent express 

16 We consider only cases like this one, in which the prior 

petition predated Proposition 66 but postdated our decision in 

Clark. We have declined to apply our successiveness bar where 

the prior petition predated Clark because, before that decision, 

we had not applied a consistent preclusive rule. “Clark serves 

to notify habeas corpus litigants that we shall apply the 

successiveness rule when we are faced with a petitioner whose 

prior petition was filed after the date of finality of Clark.” 

(Robbins, supra, 18 Cal.4th at p. 788, fn. 9.) Our analysis here 

does not apply to a case where the prior petition was filed before 

Clark and the subsequent one after Proposition 66.
In re FRIEND

Opinion of the Court by Kruger, J.

34

legislative intent — is a judgment guided by “considerations of 

fair notice, reasonable reliance, and settled expectations.” 

(Landgraf, supra, 511 U.S. at p. 270.) “In deciding whether the 

application of a law is prospective or retroactive, we look to 

function, not form. [Citations.] We consider the effect of a law 

on a party’s rights and liabilities, not whether a procedural or 

substantive label best applies. Does the law ‘change[] the legal 

consequences of past conduct by imposing new or different 

liabilities based upon such conduct[?]’ [Citation.] Does it 

‘substantially affect[] existing rights and obligations[?]’

[Citation.] If so, then application to a trial of preenactment 

conduct is forbidden, absent an express legislative intent to 

permit such retroactive application. If not, then application to 

a trial of preenactment conduct is permitted, because the 

application is prospective.” (Elsner v. Uveges (2004) 34 Cal.4th 

915, 936–937; see also Strauss v. Horton (2009) 46 Cal.4th 364, 

472 [focus is on whether application of the new law would 

“impair vested rights acquired under the prior state of the 

law”].)

Applying these principles, we conclude that when section 

1509(d) is applied to a post-Proposition 66 petition subsequent 

to an initial pre-Proposition 66, post-Clark petition, the statute 

is not operating retroactively. Application of section 1509(d) in 

these circumstances alters no established rights or liabilities, 

and defeats no reasonable, settled expectations. Proposition 66 

underscores the importance of presenting available claims in 

the first petition, but raises no retroactivity concerns because 

prior law already required counsel undertake all reasonable 

efforts to investigate and present available habeas claims rather 

than withholding them for presentation in a later petition.
In re FRIEND

Opinion of the Court by Kruger, J.

35

Under Clark and Reno, counsel has the duty, in the initial 

petition, of investigating and presenting all claims that could be 

discovered and presented at that time through due diligence. 

(Reno, supra, 55 Cal.4th at p. 452; see Clark, supra, 5 Cal.4th at 

p. 775 [“A petitioner will be expected to demonstrate due 

diligence in pursuing potential claims. If a petitioner had 

reason to suspect that a basis for habeas corpus relief was 

available, but did nothing to promptly confirm those suspicions, 

that failure must be justified.”].) On the other hand, our 

established law does not call for habeas counsel to follow every 

possibility in the remote hope of finding some unknown claim. 

(See Robbins, supra, 18 Cal.4th at p. 781 [“Counsel is not 

expected to conduct an unfocused investigation grounded on 

mere speculation or hunch, without any basis in triggering 

fact.”].) If habeas corpus counsel preparing an initial petition 

before Proposition 66 was aware of a potentially meritorious 

claim of fundamental miscarriage of justice, counsel had an 

obligation to investigate and present that claim; he or she could 

not reasonably refrain from presenting it because it might fall 

within Clark’s substantive exception and be permissibly 

presented in a future successive petition. Nothing in 

Proposition 66 changes the scope of counsel’s obligations on an 

initial habeas corpus petition: Counsel’s duty remains one of 

reasonable diligence in investigation and presentation of claims, 

and counsel is still not called on to pursue purely speculative 

lines of investigation or to include unfounded claims in an initial 

petition, even if those claims fall outside section 1509(d)’s 

exception for innocence or ineligibility. The measure’s 

narrowing of the substantive exception to successiveness thus 

does not make its application retroactive.
In re FRIEND

Opinion of the Court by Kruger, J.

36

Analogizing to federal law, Friend relies on a federal 

decision holding that AEDPA’s limits on second or successive 

petitions (28 U.S.C. § 2244(b)(2)) have a retroactive effect where

the initial application for relief was filed before AEDPA, if the 

subsequent petition would not have been procedurally barred 

under pre-AEDPA law. (In re Hanserd (6th Cir. 1997) 123 F.3d 

922; see In re Minarik (3d Cir. 1999) 166 F.3d 591 [discussing In 

re Hanserd].) Whatever the merits of Hanserd’s retroactivity 

reasoning, Hanserd is distinguishable in that it addressed an

application of AEDPA that would have foreclosed consideration 

of a claim based on intervening case law, law upon which 

Hanserd could not realistically have relied in his earlier 

application for relief. (See Hanserd, at p. 924.) Regardless of 

when in relation to AEDPA Hanserd’s earlier petition was filed, 

then, application of AEDPA’s successiveness bar worked a 

severe, and in some ways unique, unfairness in Hanserd’s case.

For reasons explained in part II., ante, our construction of 

Proposition 66 raises no similar concerns. 

In other cases, federal appellate courts have discerned no 

retroactive effect in application of AEDPA’s provisions. (U.S. v. 

Villa-Gonzalez (9th Cir. 2000) 208 F.3d 1160, 1163; Mancuso v. 

Herbert (2d Cir. 1999) 166 F.3d 97, 101.) And still others have 

rejected AEDPA retroactivity claims in particular cases because 

the petitioner did not show objectively reasonable reliance in 

omitting claims from the first petition. (See Pratt v. U.S. (1st 

Cir. 1997) 129 F.3d 54, 59; Graham v. Johnson (5th Cir. 1999) 

168 F.3d 762, 786; Alexander v. U.S. (7th Cir. 1997) 121 F.3d 

312, 314.) 

Here, if counsel on the prior, pre-Proposition 66 petition 

knew of an error or violation amounting to a fundamental 

miscarriage of justice, counsel’s duty under Clark, Robbins and 
In re FRIEND

Opinion of the Court by Kruger, J.

37

Reno was to fully investigate and present that claim in the 

earlier petition. It would not have been reasonable to ignore 

that duty in the hope that the claim could later be presented in 

a successive petition under Clark’s substantive exception. 

We therefore conclude that applying section 1509(d) to a 

post-Proposition 66 successive petition (following an initial preProposition 66, post-Clark petition) raises no retroactivity 

concerns. While the new statutory rule relates in part to a 

preenactment event, the filing of the initial petition, it does not 

meaningfully change the legal ramifications of that event. In 

light of the “considerations of fair notice, reasonable reliance, 

and settled expectations” that govern this determination 

(Landgraf, supra, 511 U.S. at p. 270), application of section 

1509(d) to a petition filed after the statute’s effectiveness should 

not be deemed retroactive, whenever the earlier petition was 

filed.

On its face, Penal Code section 1509 applies to “any 

petition for writ of habeas corpus filed by a person in custody 

pursuant to a judgment of death” (id., subd. (a)), and subdivision

(d)’s restrictions apply to “a successive petition whenever filed.” 

Nothing in the text or the accompanying ballot materials 

indicates an intent to limit these provisions to cases in which 

both the initial and successive petitions are filed after the 

measure’s effective date. We conclude there is no such limit on 

section 1509(d)’s application.

IV.

Finally, we consider the procedures for appellate review of 

a trial court’s determination that one or more claims in a 

subsequent petition are successive within the meaning of 

section 1509(d). 
In re FRIEND

Opinion of the Court by Kruger, J.

38

As noted above, Proposition 66 did not explicitly address

this point. Section 1509.1(c) requires a certificate of 

appealability for appeal from the dismissal of a successive 

petition, and a certificate may issue (from either the superior 

court or the Court of Appeal) only when there is “a substantial 

claim that the requirements of subdivision (d) of Section 1509 

have been met.” The statute does not expressly provide for 

issuance of a certificate upon a showing that the petition is not 

successive because one or more of its claims could not have been 

raised in an earlier petition or were omitted through ineffective 

assistance of counsel on the prior petition. Nor does the statute 

explicitly preclude issuance of a certificate on such a showing.17

Friend contends first that a dismissal for successiveness 

should be appealable under the provisions of Penal Code section 

17 The California Rules of Court are no clearer on this point. 

Rule 8.392 provides that the notice of appeal must identify the 

appeal as from denial of relief on a successive petition (rule 

8.392(b)(2)), and if the superior court denied a certificate of 

appealability the notice must “explain how the requirements 

of Penal Code section 1509(d) have been met” (rule 8.392(b)(3)). 

On its face, this rule appears to preclude a petitioner from filing

a noncertificate appeal and arguing in the briefing that the 

superior court erred in finding the petition successive. Left 

unclear, though, is whether the petitioner may seek a certificate 

from the Court of Appeal on the basis of a substantial showing 

that the petition, or some of its claims, were erroneously deemed 

successive. Similarly, rule 4.576(b) provides that in issuing a 

certificate of appealability on a successive petition the superior 

court “must identify the substantial claim or claims for relief 

shown by the petitioner and the substantial claim that the 

requirements of Penal Code section 1509(d) have been met.” 

The rule neither allows nor disallows the issuance of a 

certificate on a substantial showing that the petition, or some of 

its claims, are not successive.
In re FRIEND

Opinion of the Court by Kruger, J.

39

1509.1, subdivision (a). He acknowledges that this subdivision, 

by its terms, applies only to initial petitions, but argues that 

that term could be read to include “any petition that is not 

properly deemed successive,” and that we should so interpret —

or so reform — the statute in order to avoid the absurd and 

unconstitutional result that a petitioner would have no 

appellate recourse from the superior court’s successiveness 

determination.

Alternatively, if a successiveness dismissal is appealable 

only under subdivision (c) of section 1509.1 — as the statutory 

text provides — Friend maintains that a certificate should issue 

“when the petitioner makes a substantial showing that his 

petition is not successive and presents a substantial claim for 

relief.” Section 1509.1(c), he argues, 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 — not only that the exceptions in section 1509(d) are 

satisfied.”18

The Attorney General embraces Friend’s alternative

suggestion — that a certificate may issue on the successiveness 

question itself — as “giv[ing] force to the certificate of 

appealability requirement, while at the same time assuring 

review of a superior court’s determination that a petition is 

18 As a third option, Friend suggests the certificate 

requirement might be excused for threshold issues such as 

successiveness while applying to the merits of the claim. He 

points to no textual support for this reading, though, and 

explains that it would amount, in practice, to permitting an 

appeal under Penal Code section 1509.1, subdivision (a), as an 

initial petition. We need not address this unsupported reading 

further.
In re FRIEND

Opinion of the Court by Kruger, J.

40

successive.” At the same time, the Attorney General urges us to

reject Friend’s primary argument — that the certificate 

requirement can be avoided through application of Penal Code 

section 1509.1, subdivision (a), to a petition found successive in 

the trial court — as contrary to both statutory text and purpose. 

We agree with both parties that Proposition 66 can and 

should be read to provide a means for appealing the superior 

court’s determination that a subsequent petition is successive. 

An interpretation leaving unsuccessful petitioners with no 

opportunity for appellate review at all would be contrary to the 

voters’ evident intent to provide a statutory right of appeal, 

albeit a limited one, from denial of petitions deemed successive 

as well as initial petitions. Moreover, when combined with the 

measure’s prohibition on review by writ (Pen. Code, § 1509.1, 

subd. (a)), such an interpretation would effectively eliminate 

appellate court jurisdiction over a substantial class of habeas 

corpus petitions — a result that would raise significant 

constitutional questions. (See Briggs, supra, 3 Cal.5th at 

pp. 833, 841.)

We further agree with the Attorney General that section 

1509.1(c) is best read as allowing a certificate of appealability to 

issue on the successiveness question itself. In context, and with 

the understanding that section 1509(d)’s limits on successive 

petitions incorporate the parameters of Clark’s successiveness 

bar (see pt. II., ante), section 1509.1(c)’s demand for “a 

substantial claim that the requirements of subdivision (d) of 

Section 1509 have been met” is reasonably understood to include 

a substantial claim that the requirements of section 1509(d) do 

not apply because the claim or claims are not successive. Under 

this reading, as the Attorney General observes, section 

1509.1(c)’s certificate requirement plays its intended screening 
In re FRIEND

Opinion of the Court by Kruger, J.

41

role: The appeal is permitted to proceed as to a disputed claim

only if the petitioner is able to make a substantial showing that 

the claim, although presented in a subsequent petition, was not 

successive within the meaning of Clark’s rule.

As a procedure for appellate review of a superior court’s 

determination that a subsequent petition’s claim or claims are 

successive within the meaning of section 1509(d), an appeal 

under section 1509.1(c), as we interpret it, is superior to one 

under Penal Code section 1509.1, subdivision (a), in terms of 

implementing the statutory purposes. Allowing an appeal as of 

right under Penal Code section 1509.1, subdivision (a) would 

unnecessarily vitiate the screening mechanism provided in 

section 1509.1(c). When the superior court has determined that 

a subsequent petition is not successive, however, but has denied 

the petition on its merits, allowing an appeal under Penal Code 

section 1509.1, subdivision (a) would result in no evasion of the 

statute’s screening mechanism, since no such screening is called 

for as to a nonsuccessive petition.

V.

The Court of Appeal’s order denying a certificate of 

appealability is reversed, and the matter is remanded to that 

court for it to address the successiveness question under the 

standard and procedures we have described. For each claim of 

the petition, the Court of Appeal is to determine whether 

petitioner has made a substantial showing that the claim is not 

successive within the meaning of section 1509(d), as we have 

construed it here (see pt. II., ante), and is to issue a certificate of 
In re FRIEND

Opinion of the Court by Kruger, J.

42

appealability on any claim or claims as to which that showing 

has been made.

 KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

JENKINS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion In re Friend

__________________________________________________________________

Procedural Posture (see XX below)

Original Appeal 

Original Proceeding 

Review Granted (published) 

Review Granted (unpublished) XX NP order filed 7/15/19 – 1st 

Dist., Div. 3

Rehearing Granted

__________________________________________________________________

Opinion No. S256914

Date Filed: June 28, 2021

__________________________________________________________________

Court: Superior 

County: Alameda 

Judge: C. Don Clay 

__________________________________________________________________

Counsel:

Jon M. Sands, Federal Public Defender, Lindsey Layer and Stanley 

Molever, Assistant Federal Public Defenders, for Petitioner Jack 

Wayne Friend.

Cuauhtemoc Ortega, Interim Federal Public Defender (Central Dist. of 

Cal.), and Heather Williams, Federal Public Defender (Eastern Dist. of 

Cal.), as Amici Curiae on behalf of Petitioner Jack Wayne Friend.

Gibson, Dunn & Crutcher, Kelsey John Helland, Viola H. Li, Zhen He 

Tan, Theane Evangelis, Ilissa Samplin, Michael Holecek and Shaun 

Mathur for Attorneys for Constitutional Law as Amici Curiae on behalf 

of Petitioner Jack Wayne Friend.

Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor 

General, Lance Winters, Chief Assistant Attorney General, James 

William Bilderback II, Assistant Attorney General, Helen H. Hong, 

Deputy State Solicitor General, and Alice B. Lustre, Deputy Attorney 
General, for Respondent California Department of Corrections and 

Rehabilitation.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice 

Legal Foundation as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Lindsey Layer

Federal Public Defender

850 West Adams St,, Suite 201

Phoenix, AZ 85007

(602) 390-3125

Helen H. Hong

Deputy State Solicitor General

600 West Broadway St.

San Diego, CA 92101

(619) 783-9693

Kent S. Scheidegger

Criminal Justice Legal Foundation

2131 L. Street

Sacramento, CA 95816

(916) 446-0345