Opinion
S161036
06-13-2018
KELLY (DOUGLAS OLIVER) ON H.C.
Order to show cause issued, returnable in Superior Court (Atkins claim)
This petition for writ of habeas corpus was filed in this court on February 21, 2008, and amended on December 7, 2010, before the effective date of Proposition 66, the “Death Penalty Reform and Savings Act of 2016.” (See Briggs v. Brown (2017) 3 Cal.5th 808, 862, rehg. den. Oct. 25, 2017.) Under section 1509, subdivision (g) of the Penal Code, the court exercises its authority to retain this petition and decide it.
The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause in the Los Angeles County Superior Court, when the matter is placed on calendar: (1) why petitioner's death sentence should not be vacated on the ground that trial counsel rendered ineffective assistance in failing to adequately investigate and present evidence in mitigation at the penalty phase of trial (see Strickland v. Washington (1984) 466 U.S. 668), as alleged in Claim 5 of the petition; and (2) why petitioner's death sentence should not be vacated and petitioner sentenced to life imprisonment without possibility of parole on the ground that he is intellectually disabled within the meaning of Atkins v. Virginia (2002) 536 U.S. 304, as alleged in Claim 6 of the petition. (See In re Hawthorne (2005) 35 Cal.4th 40.) The return must be served and filed on or before July 13, 2018.
All remaining claims in the petition are denied on the merits.
Claims 1 (except to the extent it alleges prosecutorial misconduct for failing to disclose witness statements and inducements offered to witnesses), 7, and 11 are procedurally barred to the extent that they could have been, but were not, raised on appeal. (In re Dixon (1953) 41 Cal.2d 756, 759; see also In re Reno (2012) 55 Cal.4th 428, 443, 490-496.)
Claim 2 (to the extent it alleges underrepresentation of Hispanics in the jury pool and trial court error in denying defense motions to excuse for cause three prospective jurors) is procedurally barred under In re Seaton (2004) 34 Cal.4th 193, 199, because petitioner failed to preserve the claims at trial. (See also In re Reno, supra, 55 Cal.4th at pp. 443, 476-478.)