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California's Death Penalty: Dysfunctional Review Dysfunctionally Reviewed

By       Message Clifford Johnson       (Page 5 of 6 pages) Become a premium member to see this article and all articles as one long page.     Permalink    (# of views)   5 comments, In Series: Death Penalty doctrine

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[19] Carney's Order (at 14) states only that:

Jones amended [] his petition to broaden the nature of his claim of unconstitutional delay in California's administration of its death penalty system. [The] new claim asserts that as a result of systemic and inordinate delay in California's post-conviction review process, only a random few of the hundreds of individuals sentenced to death will be executed, and for those that are, execution will serve no penological purpose.

Carney's Order treats the new claim exactly as though regularly filed under AEDPA. In fact, it was not so filed. Jones drafted the new claim as directed, and Carney read it back just so. In this, Jones was an agent of the court. Jurisdiction accrues directly from the court's proper exercise of its sua sponte power; and reviewing courts construe all sources of jurisdiction implicit in the record. No one can doubt that the new claim is Carney's sua sponte surprise, and the law must duly follow this flagship fact.

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[20] The judiciary's sua sponte ancillary jurisdiction is in addition to its supplemental jurisdiction per 28 U.S.C. 1367(a):

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[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III.

A habeas petition is a civil action. Wex . Within reason, this statute grants jurisdiction over claims beyond the jurisdictional bound under which a primary claim is brought. Exxon Mobil Corp. v. Allapattah Services, Inc. , 545 U. S. 546 (2005). However, the statute doesn't ordinarily authorize adding an unexhausted claim to a habeas petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). Sua sponte discretion can do so, depending on the underlying justification--which in Jones is intolerable dysfunction in the state court itself. See Granberry v. Greer, 481 U.S. 129, 131 (1987) ("there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion").

[21] The Limits Of Advocacy , supra, footnote 14, 452, 455.

[22] Jones, at 15.

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[23] For full detail re these secondary findings, see Judge Carney v. The Death Penalty, sections 8 and 9. The petition for rehearing attacks only the majority's nonretroactivity finding.

[24] For full detail re this "carrying out" carry-on, see Judge Carney v. The Death Penalty, subsection 7(iv).

[25] Gregg v. Georgia , 428 U.S. 153 (1976).

[26] Godfrey v. Georgia, 446 U.S. 420 (1980).

[27] For full detail re these cases, see Judge Carney v. The Death Penalty, subsection 7(v).

[28] Carney's Order finds this defense not only insufficient at law but unsupportable in fact, pointing out (at 5) that, despite the high degree of deference required by the Anti-terrorism And Effective Death Penalty Act of 1996 , in recent decades about 60% of California's final death penalty decisions have been vacated for constitutional error.

[29] Companion articles are: (1) Glossip v. The Death Penalty: Does Oklahoma's Negligent Mock Execution Actionably Enhance Glossip's Lackey Claim ?, which is focused more on the death penalty's execution phase; and (2) Overdue Process And The Death Penalty , which argues that the Fourteenth Amendment's due process clause should be judicially updated to include an adequate criminal right of appeal, which California's dysfunctional death penalty regime fails to provide. A fourth article is planned, focusing on innocence issues and evidentiary standards, as applied to People v. Masters , S016883.

(Article changed on January 20, 2016 at 01:30)

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Clifford Johnson is a semi-academic naturalized Brit. He first entered the U.S. as a rah-rah Harkness Fellow. For theater, language, and also as a questionable ex-Brit, Johnson adopts a Tom Paine II persona. His activist credentials comprise serial (more...)

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