Opinion
S166477
01-17-2018
MUNGIA (JOHN) 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 September 4, 2008, and amended on June 1, 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 Superior Court for Riverside County, when the matter is placed on calendar, why the relief prayed for should not be granted on the grounds that: (1) trial counsel provided ineffective assistance during the penalty phase, as alleged in Claim Five; and (2) petitioner is intellectually disabled within the meaning of Atkins v. Virginia (2002) 536 U.S. 304, as alleged in Claim Six (see In re Hawthorne (2005) 35 Cal.4th 40).
The return is to be filed on or before February 16, 2018.
All remaining claims in the petition are denied on the merits, except to the extent that Claim Thirteen contends petitioner is not competent to be executed, which is denied as premature and without prejudice to petitioner's filing a renewed petition after an execution date is set.
Claim Eight and Nine, except to the extent they allege ineffective assistance of counsel, are procedurally barred under In re Waltreus (1965) 62 Cal.2d 218, 225, to the extent they were raised and rejected on appeal.
Claims Nine and Eleven, except to the extent they allege ineffective assistance of counsel, are procedurally barred under In re Dixon (1953) 41 Cal.2d 756, 759, to the extent they could have been raised on appeal but were not.
Claims Seven and Twelve, except to the extent they allege ineffective assistance of counsel, are procedurally barred under In re Seaton (2004) 34 Cal.4th 193, 201, to the extent they could have been raised in the trial court but were not.
Votes: Cantil-Sakauye, C. J., Chin, Corrigan, Liu, Cuéllar, and Kruger, JJ.