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Raymond Anthony Gurule’s lawyers filed a habeas corpus petition last week, challenging the convicted murderer’s imprisonment. But it came more than 12 years after he joined death row and nine months after the California Supreme Court upheld his sentence. In an ideal world, Gurule’s habeas case should have tracked the direct appeal of his death sentence — or at worst trailed it by only a few months — rather than being filed just now. But these are not the best of times for capital habeas cases in California. Supreme Court records show that as of April 1, 265 of the 412 condemned inmates awaiting court review had lawyers for the direct appeal of their death sentences. But 251 of the 412 had no representation on the habeas side of their cases. And even though that’s a minor increase from two years ago, it’s a large enough number to worry capital defense lawyers and death penalty opponents, who fear that the longer an inmate has no habeas counsel, the less chance there is to prevail. “It’s just a real problem,” said Gerald Uelmen, a professor at Santa Clara University School of Law and a member of the board of trustees of the Habeas Corpus Resource Center, an agency founded by the state Legislature in 1997 to represent — or find lawyers for — indigent death penalty defendants and try to reduce the state’s capital case backlog. Because of the shortage, unrepresented defendants are beginning to run up against new federal fast-track deadlines, forcing the court to accept “shell petitions” that make no arguments but presumably stop the clock. “I don’t know if there is any answer to it, other than finding a lot of lawyers willing to take on habeas cases,” Uelmen said. “It’s a problem that’s getting worse.” The high court has taken steps in recent years to tempt qualified lawyers into handling death cases. Among other things, it has increased hourly pay from $98 to $125, upped the starting investigative fees from $3,000 to $25,000, and extended the time to file a timely habeas corpus petition from 90 days to 180 days following the final due date of the reply brief in the direct appeal. But that’s just not enough, defense lawyers say. There are far more attorneys qualified to handle the direct appeal than the habeas, they say, so the number of inmates without habeas counsel will only increase. Developing a habeas case is much more complex than handling a direct appeal, defense lawyers say. “It requires a specialization that very few people in this country possess,” said Michael Laurence, executive director of the Habeas Corpus Resource Center. John Philipsborn, a capital defense lawyer in San Francisco, said habeas work “concentrates on issues that are specifically not part of the record on appeal. Very often you can be looking into the case as if it’s a new file hitting your desk.” Lawyers must have the skill to track down and interview long-lost witnesses, he said, and search for dusty documents — such as school and mental health records — that hopefully have not been destroyed. And some think no amount of outreach can fill the need for habeas counsel. Chief Justice Ronald George doesn’t agree, and, in fact, makes the argument that condemned inmates in California are actually better off nowadays than they were six years ago. That’s when the state Legislature passed a law letting lawyers accept assignment to either the direct appeal process or the habeas, rather than having to take on both. As a result, George points out, several attorneys who felt unqualified for habeas work stepped up to the plate for the direct appeal, and the effects are being felt. In late 2001, he cites, 248 of the state’s 400 death row inmates with pending appeals had direct appellate counsel compared with 265 of the 412 before the court now. That’s an increase of 17 inmates with direct appeal counsel, George said, which offsets the fact that the number of death row inmates with habeas counsel dropped by four — from 161 to 157 — during the same time. “The clear benefit is that there are fewer people under a death sentence who have no post-conviction counsel at all than before,” he said. “In a perfect world, we’d give them both [direct appeal and habeas counsel]. But if we did that, we’d have a bigger backlog of people who have nothing.” Gurule’s case, however, highlights a problem that many defense lawyers fear could grow if the high court and the Habeas Corpus Resource Center — which solicits and trains private lawyers for death sentence work — continue to have trouble attracting habeas counsel. The HCRC was appointed as habeas counsel for Gurule just this month — nine months after his death sentence was affirmed and the original counsel, who had completed the direct appeal, was dismissed. In a similar situation in August 2001, the HCRC was appointed habeas counsel for convicted killer Robert Clarence Taylor only four months before the high court upheld his death sentence. In both instances, it was so late in the game that the HCRC filed shell petitions, which contain no argument on the merits but promise a more complete document within two years. That gives the HCRC more time to prepare a state habeas brief. It also — Laurence believes — tolls the federal Anti-Terrorism and Effective Death Penalty Act’s statute of limitations, which requires the filing of a federal habeas petition within one year of the state Supreme Court’s death penalty affirmance. “The plain reading is that a properly filed petition tolls the clock, and there is a properly filed petition,” Laurence said. “The California Supreme Court has said so.” But, he adds, the rules in federal habeas proceedings “are changing every day,” and it’s “extraordinarily perilous for individuals to rely on anything other than a clear reading of the statutes.” The Supreme Court approved both shell petitions. Taylor’s, however, came over the objection of the state attorney general’s office, which argued that the shell petition stated no prima facie case for relief and that the federal habeas deadline should have been of no concern to the state Supreme Court. HCRC Executive Director Laurence said shell petitions were the only way to ensure Taylor and Gurule get a fair shake. More worrisome, he said, is the fact that the HCRC has identified 110 more cases in which the habeas proceeding is reaching a similar, if not as extreme, situation. Laurence said the ideal situation would be for HCRC, which is already handling 30 habeas cases, not to be pinch-hitting on even more. “The long-term solution is to develop more lawyers willing to take these cases,” he said. “It means setting up training programs and actively recruiting in the defense community.” Actually, that’s a major component of HCRC’s legislatively designed mission, and Laurence said his group has recruited 22 attorneys to accept appointments to capital cases — some for the direct appeal, some for the habeas and some for both. In fact, dual appointments are still the preference for Laurence and Chief Justice George: It was legislators, not the courts, who passed the law giving attorneys the option of direct appeals or habeas. But Laurence and George aren’t about to pass up attorneys who will take a direct appeal while avoiding the more complex habeas work. “I think it’s better for people to have a lawyer rather than no lawyer,” Laurence said. Adds George: “Given the fact that we’ve got a world of scarce resources here, if we’re forced to make a choice, we will be inclined to appoint for the appeal.” And George said he isn’t backing off on the court’s written requirements aimed at ensuring that appointed counsel are qualified to handle death penalty cases. “I’d rather have the problem of a backlog the way we have because we are trying to get effective counsel appointed,” he said, “than have the problem of Texas and other states going lickety-split through the process, and then finding there are real problems.” PUBLIC AGENCIES Some defense lawyers, though, say that it shouldn’t be necessary for the high court to settle on separate counsel for the habeas and the direct appeal when there are institutional options in California. State Public Defender Lynne Coffin, for one, said that while the Supreme Court has tried valiantly to recruit private lawyers to handle habeas cases, it’s obvious that public agencies, such as hers, are the answer. “After seeing their efforts for three years, I’ve become convinced the court has done everything [it] possibly can,” she said, “but my agency and the HCRC are going to have to be the ones to pick up this problem.” Coffin’s organization, which is supposed to focus on direct appeals, still handles dual direct appeal/ habeas cases from the older days, and in late March was assigned the habeas work for convicted murderess Kerry Lyn Dalton. And Coffin said the high court is aware that her office is ready and willing to tackle more habeas cases. “It is unfortunate that the agencies that could help solve this problem have not been able to really address the problem,” she said, “because the focus has been on finding private counsel — and I hope that focus now shifts.” The chief justice, however, said it’s not that simple. “I know that Lynne Coffin’s been eager to do this, and I’m not saying this critically, but the office of the state public defender has been unable to meet the commitments it made to take a certain number of appeals we had anticipated,” George said. “They are taking fewer appeals than we wanted them to, and to which they committed. “What we have told the state public defender’s office is that when the backlog of appeals is going down, we would certainly consider making more habeas appointments [to that office]. Right now, their primary obligation is to handle appeals, and our obligation is to make sure people have counsel on appeal.” If that’s so, some defense lawyers say, then the whole system as it’s set now — with lawyers picking and choosing between direct appeals and habeas — is doomed. “In most cases, you’re looking at a case as a whole,” said San Francisco defense lawyer Philipsborn. “You’re defining the appellate issues. You’re learning about the client. You are beginning to develop the case and, arguably, some of that is done twice when you separate habeas and appeal work.” “What it means is that two lawyers, rather than one, have to read the entire record, which is a complete waste of time and money,” said another lawyer familiar with habeas defense, who requested anonymity. “Two lawyers have to visit the client, two lawyers have to do basically everything. The people who sold the Legislature and the court this bill of goods, I don’t know if they understood the system.” ONGOING PROBLEM No matter what the court does, some defense lawyers say, it will always have problems procuring habeas counsel. Berkeley solo practitioner Wesley Van Winkle, a former president of the California Association of Defense Counsel, said that’s partly because the pay, though increased, still stinks. The hourly rate of $125 doesn’t work, he said, because the court, which has internal guidelines about payment, doesn’t approve all billings, and the court’s flat-fee option of about $241,000 doesn’t take into account the complexity of the habeas portion of a case. “My experience,” said Van Winkle, who has four death cases, “is that whether [lawyers] take the flat fee or fees and costs, they end up doing a hell of a lot more work than expected.” Word gets out, he said, and other lawyers steer clear. Van Winkle said he has one case in which the direct appeal is due this fall, and there still is no habeas counsel. “I don’t know what will happen,” he said. On top of that, Van Winkle said, many lawyers don’t want to do a death case because they go on so long. “Who wants to keep a case they are never going to get rid of as long as they live?” he asked. George said the court has made great strides in its relations with lawyers and is working hard to make sure all death row inmates get treated fairly. “The number of cases in which some people have some kind of counsel is increasing,” he said. “Is it going as fast as I like? No, it isn’t. But a lot of these things take time.”

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