Page 258 - Ad Hoc Report June 2018
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on the courts as well. The district court will have 450 days from the date the peti- tion is filed or 60 days from the date the case is submitted for decision, whichever is earlier, to reach a final determination, with at most a possible 30-day extension. The court of appeals will have 120 days after the reply brief is filed to issue an opinion. If Texas and Arizona, as well as other states, are granted opt-in, it will put tremendous strain on a system that is already insufficient to handle capital habeas petitions. While the costs to defender and court budgets would be enormous, the danger this poses for petitioners, who may not receive quality representation and due process, is most concerning.
9.4.2 California—Proposition 66
In November 2016, California voters narrowly passed Proposition 66 (commonly referred to as “Prop 66”). Prop 66 provides that the current backlog of approxi- mately 515 capital habeas cases be eliminated within five years. It also provides that in the future all review of appellate and post-conviction death sentences be completed within five years of imposition. The proposition effectively eliminates successive habeas petitions. It will also force the state Judicial Council to reeval- uate the standards for appointing counsel to make them less restrictive and bar qualified counsel from declining appointments to these cases. Authority to appoint capital counsel would move from California Supreme Court to the trial courts, and appellate counsel and habeas counsel would be appointed at the same time to create parallel litigation tracks.
Counsel at the state level would be required to file a state habeas petition within one year of their appointment, and the trial court would be required to render a decision on the habeas petition within one year of the filing. An appeal to the intermediate court of appeal must be filed within five years. The proposition would also allow for ineffective assistance of counsel claims to be raised on habeas appeal, even though the direct appeal would be running concurrently.
In deciding a facial challenge to the proposition, the California Supreme Court ruled that the proposition’s time limits are directive rather than mandatory. More than 350 people convicted and sentenced to death in California are currently await- ing appointment of habeas counsel. Thirty-two are preparing their petitions, and 125 have a petition on file.
If California courts hew strictly to these time limits, the four federal districts in California can anticipate that these 515 cases will be added to their current case- loads within the next five years. This would approximately triple their total current capital caseload. It is doubtful that they can find sufficient numbers of qualified counsel able and willing to take these cases. Additionally, there are only two CHUs in California, and they do not have the necessary staff to litigate these cases. •
No recommendation presented herein represents T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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