[14] For instance, Jarvis Masters, convicted in 1990, is still waiting for his appeal to be decided. People v. Masters, S016883.
[15] Many more have been transferred to arguably worse-than-death, unconstitutionally deficient mental health segregation units. See Coleman v. Brown, (E.D.Cal 4-5-2013 and 4-11-2014) 938 F. Supp.2d 955, 970 and 28 F.Supp.3d 1068 (deliberate indifference to inmates' serious mental health care needs); and "Systemic Failures Persist" in California Prison Mental Health Care, Judge Rules , Solitary Watch.
[16] Per state, the number of Executions Per Death Sentence from 1977-2010 is published by the Death Penalty Information Center. California's rate is 1.5%. Highest is Virginia (72.5%), followed by Texas (49.8%), Utah (36.8%), Missouri (34.7%), Delaware (31.1%), Oklahoma (30.5%), and Montana (30%). Of the 32 current death penalty states, 14 have rates below 10%.
[17] The phrase "at sentencing" does not appear in Furman. It is used to insinuate that only trial court sentencing was at bar in Furman, and that whatever Furman may have held re postconviction proceedings must be dicta. In Furman, "sentencing" does often refer to trial court decisionmaking, but that does not mean that Furman's required regulation of sentencing stops at close of trial. Justice is assured and sentencing standards are shaped by the adjustment and normalizing review processes that ultimately render a legally final sentence. "It ain't over 'til it's over." Yogi Berra . See also footnote 25. In the next sentence, the word "when" is likewise misleading. Jones' complaint is not about when but whether a death sentence is carried out.
[18] At the oral hearing , Judge Graber put it this way: "[T]hat was a completely different issue in that in Furman the question was 'In which cases is the death penalty imposed by the court?' and here the question is, assuming that the process that led to the imposition of the death penalty was proper, the question is 'Now what? What about all the people who are properly convicted, properly sentenced to death, when are they executed?' It doesn't seem to me that that's the question Furman asked or answered."
[19] "Many agree [] that California's capital punishment system is dysfunctional . . . But 'the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.' Sawyer v. Smith , 497 U.S. 227, 234 (1990) [following Teague v. Lane , 489 U.S. 288 (1989)]. Because [Jones] asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim." Jones, at 28 (Judge Graber and Judge Rawlinson, majority opn.). Judge Watford disagreed, commonsensically holding that Jones sought an obviously substantive new rule, which is a categorical exception in Teague. Jones, at 29. The majority overcleverly argued, apparently setting a precedent, that the new rule sought was procedural. The category "all death row inmates" was deemed not substantial, whereas lesser! sub categories such as "insane' and "juvenile" were substantial:
Under Petitioner's view, almost any procedural rule could be characterized as substantive merely by defining the petitioner as belonging to a class of persons with the "status" of those whose convictions or sentences were obtained through an unconstitutional procedural rule. We reject Petitioner's unconventional interpretation of the exception for substantive rules.
To avoid Teague's second categorical exception, re "watershed" procedural rules (under which Carney's Order would also seem to super-qualify), the majority simply noted that it had not been argued by Jones. Jones, at 27.
[20] "A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court. 28 U.S.C. 2254(b)(1)(A). Jones concedes he has not done that." Jones, at 29 (Judge Watford, concurring opn.). However, in People v. Seumanu, S093803 (Aug. 24, 2015), at 91-102, the California Supreme Court extraordinarily included a unanimous, 11-page advisory opinion repudiating Carney's Order , thereby inviting, if not compelling, an excepting finding of futility.
[21] There are other serious problems with the decision in Jones, which I reserve for future discussion.
[22] Furman v. Georgia, 408 U.S. 238, 240 (1972) (per curiam; emphasis added).
[23] Gregg v. Georgia , 428 U.S. 153, 198, 223-224 (1976).
[24] Godfrey v. Georgia, 446 U.S. 420 (1980).
[25] Full appellate due process requirements (including the right to counsel) naturally extend to state collateral proceedings (e.g. habeas petitions), if and insofar as those proceedings must be used to pursue ordinarily appealable claims, such as ineffective assistance of counsel at trial. Martinez v. Ryan, 132 S.Ct. 1309 (2012). Otherwise, collateral proceedings entail no right to counsel. Ross v. Moffit, 417 U.S. 600, 615 (1974) so held, but it also indicated that equal protection rights attach throughout. Counsel is denied only because the initial appeal furnishes a sufficient record to enable tolerable self-representation:
At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.
(This is arguably inapplicable where new evidence gives rise to new defenses.) After the initial appeal, an inmate is still entitled to the provision of papers, law libraries, and limited legal advice. In Murray v. Giarrantano, 492 U.S. 1, 14-15 (1989), which found no right to counsel in a collateral proceeding, this diluted set of rights survived by a five-four count. The five comprised four dissenters plus Kennedy, who swung both ways, voting against the right to full representation by counsel not because of the total lack of litigation rights that his four co-voters found, but only because:
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