In Re Gallego

959 P.2d 290, 77 Cal. Rptr. 2d 132, 18 Cal. 4th 825, 98 Daily Journal DAR 8387, 98 Cal. Daily Op. Serv. 6056, 1998 Cal. LEXIS 4690

• Court: California Supreme Court
• Decided: August 3, 1998
• Docket: S042737
• Status: Published

Opinions

Opinion

GEORGE, C. J.

Petitioner’s judgment of conviction and sentence of death was affirmed on appeal in 1990 (People v. Gallego (1990) 52 Cal.3d 115 [276 Cal.Rptr. 679, 802 P.2d 169], cert. den. (1991) 502 U.S. 924 [112 S.Ct. 337, 116 L.Ed.2d 277] (Gallego I)). In October 1994, shortly after we granted the motion of present counsel to replace petitioner’s appellate counsel, petitioner filed this petition for a writ of habeas corpus, his first state habeas corpus petition, raising 35 claims.

We issued an order to show cause in this matter and in the companion case of In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 311] {Robbins), to address issues relating to application of the procedural bar of untimeliness. Our order to show cause herein directed the parties to address a narrow issue: whether, and under what circumstances, this court’s denial of a confidential request for habeas corpus investigation funds may be relevant to establishing the absence of substantial delay or good cause for such delay with regard to related, later-filed habeas corpus claims.

We conclude that a petitioner’s timely request for investigation funds, and our denial of that request, are, under circumstances described herein, relevant to our inquiry into “substantial delay” in two respects: First, a request for funds is relevant to a petitioner’s allegation that information offered in súpport of certain of his or her claims was obtained recently and was not known earlier. Second, our denial of a petitioner’s timely request for investigation funds will support a determination that the petitioner not only did not actually know of the information earlier but also should not reasonably have known of the information earlier. If (i) discovery of the information offered in support of a claim requires the expenditure of funds, (ii) the petitioner is indigent and cannot fund the investigation personally, and (iii) the petitioner timely files a request for funding of a specific proposed investigation, fully disclosing all asserted triggering information in support of the proposed investigation, then the petitioner’s appointed counsel has exercised reasonable diligence with respect to the proposed claim. When our court denies such a request for investigation funds—having determined that the petitioner has failed to present sufficient “triggering facts” to support the proposed investigation—we cannot properly find that the petitioner should have discovered such information without first obtaining funding from some other source or learning of the information in. some other manner. Appointed counsel for the petitioner has no obligation personally to fund a habeas corpus investigation (whether or not the investigation is supported by “triggering facts”). Thus, a denial of a request for investigation funds is, under the described circumstances, relevant to whether a petitioner “should have known” of the information earlier.

Nevertheless, although we conclude that such a request for investigation funds is relevant to the determination of the timeliness of a subsequently filed habeas corpus petition, petitioner in this case, as we shall explain, has failed to meet his burden of establishing that the claims presented in his petition were filed without substantial delay. Furthermore, we also conclude that all of the claims raised in the petition must be rejected on the merits, and that most claims also must be rejected on various procedural grounds. Accordingly, we shall, in an accompanying order, a copy of which is appended to this opinion, deny .in its entirety the petition for a writ of habeas corpus.¹

I

We need not recount the facts underlying petitioner’s convictions in order to address the procedural question here at issue. It suffices to note that petitioner was convicted in 1983 of murdering a young couple. The prosecution presented evidence at the guilt phase of the trial that petitioner had committed two additional murders, and presented evidence at the penalty phase of the trial that petitioner had committed yet two additional murders. (Gallego I, supra, 52 Cal.3d at pp. 140-158.)

A

The relevant procedural facts are as follows. In early October 1989— approximately 15 months before we filed our opinion on petitioner’s automatic appeal—appellate counsel for petitioner timely filed a confidential application for authorization to incur $7,000 in investigation expenses related to potential claims that might be raised in a subsequent petition for a writ of habeas corpus.² (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, Standards governing filing of habeas corpus petitions and compensation of counsel in relation to such petitions (Policy 3), pt. 2, Compensation standards, std. 2-3.)

The confidential application requested, among other things, a sum to investigate petitioner’s competence to stand trial.³ In July 1990, we authorized an expenditure to investigate one possible claim unrelated to any of the claims presented in the present petition, and denied the remainder of the application, including the request for funds to investigate petitioner’s competence to stand trial.⁴ Appellate counsel for petitioner did not subsequently file a habeas corpus petition.

After the United States Supreme Court denied a petition for rehearing of its denial of certiorari (Gallego v. California (1991) 502 U.S. 1009 [112 S.Ct. 650, 116 L.Ed.2d 667]), the superior court set petitioner’s execution for early March 1992. In early February 1992, petitioner filed, in propria persona, an application for appointment of counsel and for temporary stay of execution in the United States District Court for the Northern District of California. That court granted the application and subsequently issued several stays of execution while the northern district selection board located and recommended appointment of federal habeas corpus counsel for petitioner.

The federal court appointed present counsel to represent petitioner in federal court on August 28, 1992. Petitioner secured funds for, and commenced, a habeas corpus investigation. Thereafter, pursuant to various orders, petitioner’s execution was stayed by the federal court for another 19 months—until March 25, 1994—at which time petitioner, on order of the federal court, filed a habeas corpus petition in federal court containing both exhausted and unexhausted claims.

The federal district court denied a motion by the Attorney General to dismiss the unexhausted claims, and granted petitioner 60 days in which to file in this court a petition for a writ of habeas corpus to exhaust those claims. In September 1994, we allowed state-appointed appellate counsel to withdraw and granted the motion of federally appointed counsel for appointment to represent petitioner in this court. Petitioner filed the present petition on October 14, 1994.

B

The petition is not entitled to a presumption of timeliness, because it was not filed “within 90 days after the final due date for the filing of appellant’s reply brief on the direct appeal.” (Policy 3, supra, std. 1-1.1, originally adopted eff. June 6, 1989.) Accordingly, in order to avoid the bar of untimeliness, petitioner has the burden of establishing either (i) “absence of substantial delay” (id., std. 1-1.2; see In re Clark (1993) 5 Cal.4th 750, 782-784 [21 Cal.Rptr.2d 509, 855 P.2d 729] (Clark)), (ii) “good cause for the delay” (Policy 3, supra, std. 1-2; Clark, supra, 5 Cal.4th at.pp. 783-787), or (iii) that his claims fall within an exception to the bar of untimeliness (Clark, supra, 5 Cal.4th at pp. 797-798). We address herein only one aspect of the first of these alternative showings that petitioner must make to avoid the bar. (We consider all three of these matters in the opinion in the companion case,- Robbins, supra, 18 Cal.4th 770.)

II

For purposes of addressing the question posed in our order to show cause (whether, and under what circumstances, this court’s prior denial of a confidential request for habeas corpus investigation expenses may be relevant to establishing the absence of substantial delay), we need examine only one of the petition’s claims. “Claim X” asserts that penalty phase counsel—who entered the trial after petitioner represented himself at the guilt phase—provided constitutionally ineffective assistance of counsel because he failed to raise the issue of petitioner’s alleged incompetence to stand trial during the penalty phase of the trial.

Claim X is premised in substantial part upon voluminous “family background” information concerning the social, medical, and criminal histories of petitioner and his relatives, and “expert assessments” by seven mental health professionals—based in large part upon that background information—that petitioner “suffered the effects of long-standing brain impairment and related psychiatric disorders which, particularly under the stress and complexity of litigation, severely impaired his ability to understand the nature of the proceedings or rationally to assist counsel in investigating, preparing and presenting a defense.” Although the petition acknowledges that petitioner’s trial counsel, when re-appointed to represent petitioner at the penalty phase, had petitioner examined by mental health experts and thereafter moved for a new trial with respect to the guilt phase on the ground that petitioner’s waiver of the right to counsel at the guilt phase was constitutionally ineffective because it had not been “intelligent,” the petition contends that petitioner’s trial counsel nonetheless provided ineffective assistance with regard to this matter because counsel, in arguing the inadequacy of petitioner’s waiver of counsel, did not refer specifically to the organic brain damage allegedly disclosed by the then recent medical examination of petitioner, and did not advance the argument that petitioner was incompetent to stand trial at the penalty phase. Petitioner offers the above described “family background” and “expert assessment” information to establish what trial counsel could and should have discovered and how such information would have affected the resolution of a competency claim, had such a claim been advanced.⁵

As we observe in today’s companion case, Robbins, supra, 18 Cal.4th at page 787: “Petitioner has the burden of establishing the absence of ‘substantial delay.’ Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. If a petitioner fails to allege particulars from which we may determine when the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim, he or she has failed to carry the petitioner’s burden of establishing that the claim was filed without substantial delay. RQ A petitioner does not meet his or her burden simply by alleging in general terms that the claim or subclaim recently was discovered, or by producing a declaration from present or former counsel to that general effect. He or she must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time—and he or she bears the burden of establishing, through those specific allegations (which may be supported by relevant exhibits, . . .), absence of substantial delay.” (Italics in original.)

When a petitioner or counsel representing a petitioner actually is aware of information that is sufficient to state a prima facie claim for relief on habeas corpus, that claim should be presented to a court without substantial delay. When, on the other hand, a petitioner or counsel knows or should know only of triggering facts—i.e., facts sufficient to warrant further investigation, but insufficient to state a prima facie case for relief—the potential claim should be the subject of further investigation either to confirm or to discount the potential claim. {Clark, supra, 5 Cal.4th at pp. 783-784; see also Robbins, supra, 18 Cal.4th at pp. 791-793 [scope of duty to investigate].) And when the petitioner and his or her counsel lack triggering facts concerning a particular claim, counsel has no duty to investigate that claim.

When further investigation is required, such investigation may, and often does, necessitate expenditure of funds and employment of investigators and experts. Private appointed counsel, however, is under no obligation to fund such an investigation out-of-pocket. Pursuant to policies in effect since June 6, 1989 (see post, fn. 7), the state has funded capital case habeas corpus investigation by private appointed counsel as follows: If the potential petitioner—as in this matter—was represented by counsel appointed by this court on a traditional “allowable hours and costs” basis, counsel was permitted to incur (and seek reimbursement for) reasonable investigation expenses up to $3,000 without prior court approval. (Policy 3, supra, former std. 2-2.1, now std. 2-2.3 (see post, fn. 7).) Alternatively (or in addition, if the $3,000 base amount already was expended), such counsel had the opportunity—as was done here—to file with this court a “confidential request for authorization to incur expenses to investigate potential habeas corpus issues.”⁶ (Policy 3, supra, former stds. 2-2.2 to 2-4, now stds. 2-2.4 to 2-4.)⁷

When counsel appointed by this court to represent a petitioner on a traditional “allowable hours and costs” basis timely filed a request for funding of a specific proposed habeas corpus investigation fully disclosing all asserted triggering information in support of the proposed investigation, and this court denied the request in whole or in part, counsel neither was obliged nor expected to seek reconsideration, unless counsel could produce additional documentation or explanation to support the proposed investigation. Our denial of funding in that situation indicates our determination that the request failed to disclose triggering facts warranting additional investigation. Because counsel was (and is) not required personally to fund a habeas corpus investigation, a petitioner in this situation cannot reasonably be expected to have discovered facts that could be obtained only through additional investigation. And because a petitioner who has only information that does not rise to the level of a prima facie claim is not required or expected to file a petition embodying such a claim, it cannot be said that such a petitioner reasonably should have filed a petition raising the undeveloped claim at that earlier time. Only if and when the petitioner thereafter acquires additional information offered in support of a prima facie claim, either after obtaining investigation funding from another source or by learning of the information in some other manner, does the time for promptly filing the claim commence.

This does not mean, however, that a prospective petitioner or his counsel whose request for investigation funds has been denied and who lacks triggering information justifying investigation into any unperfected claim never should file a habeas corpus petition. If such a petitioner or counsel is, or should be, aware of some claims as to which a prima facie case may be stated, and there is no ongoing bona fide investigation into other potentially meritorious claims (see Robbins, supra, 18 Cal.4th atpp. 805-806), a petition advancing the known claims “must be presented promptly;” {Clark, supra, 5 Cal.4th at p. 784.)

It follows that, with regard to the “substantial delay” prong of our timeliness inquiry, a petitioner may establish the absence of substantial delay by showing that he or she previously was unaware of information offered in support of a given claim, and reasonably failed to discover earlier the information offered in support of that claim because he or she timely requested but was denied funding to investigate that claim.⁸ In other words, we cannot conclude that a petitioner “reasonably should have known” of information offered in support of a claim if, because the petitioner reasonably lacked triggering facts supporting an investigation of that claim and was denied funds with which to obtain information, he or she was unable to investigate the claim.⁹

Respondent’s objection to this conclusion is unconvincing. It asserts that “[a] petitioner who withholds presentation of habeas corpus claims in the hope of obtaining investigation funding from some other source has substantially delayed presentation of the claims” (italics added), and that “a petitioner’s failure or inability to allege the minimal, basic facts necessary to obtain funds to conduct additional investigation cannot justify [or establish the absence of substantial] delay in presenting claims on state habeas corpus.” As explained above, however, a petitioner, having been denied requested funds to investigate an identified “potential” but wholly undeveloped claim that does not state a prima facie basis for relief, properly may decline to file a petition containing that as-yet unsubstantiated claim. In so doing, the petitioner does not “withhold” a claim, because, as to that undeveloped and unsubstantiated claim,, he or she has no prima facie case to present.

C

Having concluded that, as a general matter, this court’s denial of a request for funds to investigate a habeas corpus claim may be relevant to the timeliness'of a subsequently filed habeas corpus claim, we shall determine whether petitioner has established that Claim X was not substantially delayed. For the reasons set out below, we conclude that petitioner has failed to do so.

1. When was the information offered in support of Claim X obtained, and was it known, or should it reasonably have been known, by petitioner at any earlier time?

Neither in the petition, the “informal reply” (Cal. Rules of Court, rule 60), nor in the traverse (see Robbins, supra, 18 Cal.4th at p. 789) does petitioner establish when the information offered in support of Claim X was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time.

The petition asserts generally that “[djuring the federal habeas [corpus] investigation, facts were uncovered which indicated that Petitioner had meritorious habeas [corpus] claims,” and that all claims were “brought. . . within a reasonable time after [current counsel] became aware of the factual bases for the claims presented in the petition.” The petition also asserts in general terms that because this court denied the majority of the confidential 1989 habeas corpus funding application, and because prior (appellate) counsel could not afford to “finance a habeas [corpus] investigation for [petitioner] out of his own pockety ... no plenary investigation could be conducted” on petitioner’s behalf. Subsequently, in his traverse, petitioner asserts that he proposed in his confidential 1989 request to investigate the issue of his competence to stand trial, and that we denied funding for that purpose. (See ante, fns. 3 & 4.)

The petition further asserts that after counsel were appointed by the federal court, they were forced to “familiarize themselves with the extensive record in the case, conduct a plenary habeas corpus investigation,[¹⁰] and prepare the Federal Petition. This process unearthed a great deal of factual information and many potentially meritorious claims which were unknown during the direct appeal. Petitioner presented these claims to the Federal Court and to this Court in a timely manner.”

Petitioner offers in support of these general allegations the declaration of his appellate counsel, who asserts: “Prior to the investigation pursued in conjunction with the federal habeas [corpus] petition starting in 1992,1 was not aware of any information to indicate a factual or legal basis for” various claims, including Claim X.¹¹

Viewed singly or together, these general allegations fail to establish when the information offered in support of Claim X was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time.

Petitioner’s informal reply contains allegations that, although somewhat less general, still are insufficiently specific. In that filing, petitioner asserts generally that neither he nor his prior or present counsel knew of the facts offered in support of the unexhausted claims—including Claim X and related claims—“until [present] counsel undertook the federal habeas [corpus] investigation in 1993 and early 1994.” Thereafter, petitioner’s informal reply asserts—again, in general terms—that “none of the key facts underlying the unexhausted claims [pleaded] in the Petition were known or could have been known until a matter of months before the Petition was filed [in mid-October 1994].”

Petitioner complains in his informal reply that “Respondent does not get down to details. For example, Respondent never states exactly what Petitioner or his counsel knew or should have known with respect to any claim, or when they should have known it. . . . As to all such details, Respondent is noticeably silent.” (Italics in original.) Of course, as explained above, the burden is on petitioner to establish the absence of substantial delay, and he, not respondent, must “get down to details.” And, as noted, he fails to do so in his petition, his informal reply, or his traverse.¹²

2. Has petitioner established that Claim X was presented without substantial delay?

Because petitioner has not alleged with specificity facts showing when he obtained the information offered in support of Claim X, and that the information was neither known, nor reasonably should have been known, at any earlier time, he has not established the absence of substantial delay as to that claim.¹³

D

We confined the order to show cause in this matter to the procedural issue discussed and resolved above. Accordingly, we do not address herein the merits of the claims raised in the petition, nor do we address herein the application of any procedural bar other than that of untimeliness to any claim. The petition for a writ of habeas corpus will be resolved, as is the normal procedure for such matters, by summary order (see Clark, supra, 5 Cal.4th at p. 781), a copy of which is appended to this opinion. For the guidance of the parties, however, we shall address briefly and in broad outline the timeliness of the other claims presented in the petition.

The vast majority of the claims rely exclusively upon the appellate record. These claims were known or reasonably should have been known to immediately preceding counsel, and they should have been presented to this court, if at all, in a habeas corpus petition shortly after we denied petitioner’s request for investigation funds. (See ante, at pp. 833-835.)

In addition to Claim X, discussed above, three other claims and one subclaim (related “competency” Claims I, II, and III, described ante, fn. 5, and unrelated “Claim XI, part (C),” asserting that penalty phase counsel were constitutionally ineffective for failing to contest the other-homicides aggravating evidence) are based in substantial part upon information outside the appellate record.

As to all claims and subclaims raised, petitioner fails to carry his burden of establishing when information offered in support of the claim or subclaim was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time. Accordingly, as to all claims and subclaims, petitioner fails to establish the absence of substantial delay.

Petitioner also fails to carry his burden of establishing good cause for the delay. (See Robbins, supra, 18 Cal.4th at pp. 805-811, and ante, fn. 13.) Finally, as to each claim and subclaim raised in the petition, petitioner fails to demonstrate that any of the four exceptions to the bar of untimeliness applies. (See Clark, supra, 5 Cal.4th at pp. 797-798; Robbins, supra, 18 Cal.4th at pp. 811-813.)¹⁴ Accordingly, all claims and subclaims raised in the petition will be denied as untimely,¹⁵ and on other applicable grounds.

III

The order to show cause is discharged.

Baxter, J., Werdegar, J., and Chin, J., concurred.

1 Justice Brown’s concurring and dissenting opinion in this case is addressed primarily to broad issues implicated by our holding in Robbins, supra, 18 Cal.4th 770. We address in Robbins (id. at p. 778, fn. 1) the points raised in the concurring and dissenting opinion in this case.

2 For purposes of this proceeding only, petitioner has waived confidentiality as to this application for investigative funds and related documents.

3 In this regard, the request by appellate counsel read in relevant part: “In his opening brief, appellant raised the issue of his competency to stand trial. Appellant and his appointed counsel have been questioned by me [appellate counsel] and it is my good faith belief that further investigation would include discussions with psychologists and psychiatrists to determine whether appellant was competent to stand trial.”

4 We denied funding for the proposed “competency” investigation on the ground that petitioner’s wholly conclusory proposal (see ante, fn. 3) failed to allege “[s]pecific facts that suggest there may be an issue of possible merit” (Policy 3, supra, std. 2-4.2)—in other words, because the request failed to disclose triggering facts sufficient to justify investigation of the proposed claim.

On appeal, petitioner raised the related issue of the trial court’s asserted error in failing to order a hearing pursuant to Penal Code section 1368 concerning petitioner’s competence to stand trial. We observed in our opinion on the direct appeal that although the trial court initially considered requiring defendant to undergo a competency examination pursuant to that statute, defendant thereafter requested, and was permitted, to represent himself at the guilt phase of the trial, and the trial court “later stated that its initial concerns about defendant were incorrect. Indeed, the court concluded that defendant did not appear to be any less competent than ‘anyone else in this courtroom.’ ” (Gallego I, supra, 52 Cal.3d at p. 162.) Thereafter, at the hearing on the automatic motion for new trial, the court commented that petitioner “did a rather good job” in his voir dire of the jury, and that generally, “in my opinion [petitioner] did a very fine job in his handling of this matter. fl[] There are some attorneys that I have seen in front of me who wouldn’t have done as good a job.” In addition, the record contained various other indicators of petitioner’s competence at trial: Petitioner was prepared to file several motions as soon as his request for self-representation was granted, requested the assistance of the National Jury Project for jury selection, and moved to retain counsel in his pretrial writ petitions in the Court of Appeal. We concluded, based upon the appellate record, that there was “no ‘substantial evidence’ ... of defendant’s incompetence to stand trial.” {Ibid.)

5 The petition also presents three related claims: “Claim I” asserts petitioner was incompetent to waive his right to counsel at the guilt phase of the trial, “Claim II” asserts petitioner was incompetent to stand trial during the guilt phase of the trial, and “Claim III” asserts petitioner was incompetent to stand trial at the penalty phase of the trial.

6 In making such a request, counsel for the prospective petitioner was required to set out, among other things, (i) the issues to be explored; (ii) specific facts that suggest there may be an issue of possible merit, and (iii) an itemized list of the expenses requested for each issue of the potential habeas corpus petition. (Policy 3, supra, stds. 2-4.1 to 2-4.3 (see post, fn. 7).)

7 Effective January 22, 1998, we amended the “Compensation standards” of Policy 3 and the related “Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in the California Supreme Court,” Guideline 2 Incidental and Investigative Expenses (Fixed Fee Guideline 2), pursuant to newly enacted Government Code section 68656, subdivision (b). Under the revised “Compensation standards” of Policy 3 and Fixed Fee Guideline 2, counsel appointed for habeas corpus representation pursuant to a traditional “allowable hours and costs” agreement, or pursuant to a “fixed fee agreement,” will be reimbursed—without the necessity of prior approval from this court—for reasonably incurred habeas corpus investigation expenses up to a cap of $25,000 prior to issuance of an order to show cause. (See Policy 3, supra, std. 2-2.1; Fixed Fee Guideline 2 Incidental and Investigative Expenses.)

8 With regard to a petitioner who earlier presented a petition containing a claim supported by certain information, and who later presents a subsequent petition raising the same or an analogous claim supported by additional information, a demonstration that the petitioner reasonably failed to discover the additional information—as a result of a denial of a request for funds to investigate the claim—also may be relevant to application of the bars of successiveness (see Robbins, supra, 18 Cal.4th at p. 788, fn. 9) or repetitiveness (see In re Miller (1941) 17 Cal.2d 734, 735 [112 P.2d 10]), as well as to the bar of untimeliness.

9 By so observing, we do not suggest that we erred in denying funds to investigate the claim-—indeed, we did not err. (See ante, fns. 3 & 4.) We simply recognize that unavailability of funding may, in some circumstances, support a conclusion that a petitioner cannot reasonably have been expected earlier to have obtained information offered in support of a claim.

10 Petitioner asserts that his “plenary” investigation was required by McCleskey v. Zant (1991) 499 U.S. 467 [111 S.Ct. 1454, 113 L.Ed.2d 517], As we observe today in Robbins, supra, 18 Cal.4th at page 793, footnote 14, “The opinion in McCleskey states only that a ‘petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.’ (Id. at p. 498 [111 S.Ct. at p. 1472], italics added.) McCleskey nowhere suggests that a ‘reasonable’ investigation is one grounded on mere speculation or hunch, without any basis in triggering fact, and no decision of which we are aware has recognized or imposed such an unfocused and broad duty.”

11 Appellate counsel’s declaration also asserts that related Claims I and II (alleged incompetence to waive right to counsel at the guilt phase of the trial, and alleged incompetence to stand trial during the guilt phase of the trial) are “based in part on facts of which I was not aware prior to the federal habeas [corpus] investigation.” The declaration does not assert that related Claim III (alleged incompetence to stand trial at the penalty phase of the trial) is based, in whole or in part, on information of which counsel previously was unaware.

12 In introducing its discussion of timeliness, the petition purports to “incorporate by reference the allegations contained in the other sections of this Petition, and the facts set forth in the Exhibits hereto.” As we explain today in Robbins, supra, 18 Cal.4th at page 799, footnote 21, “Petitioners should in the future clearly present in the petition specific allegations (with appropriate references to, and description of, any supporting exhibits that may be provided) concerning when information offered in support of each claim and subclaim was obtained, was known, and reasonably should have been known.” (Italics in original.) A petitioner does not allege, with specificity, absence of substantial delay merely by generally “incorporating by reference” all of the facts set forth in the exhibits.

13 As explained in Robbins, supra, 18 Cal.4th at pages 805-806, a petitioner may establish good cause for substantial delay in the filing of a claim if he or she was conducting a bona fide ongoing investigation (based upon known triggering facts) into another claim or claims and withheld the completed claim to avoid the piecemeal presentation of claims. In the present case, petitioner does not allege or establish that he or his counsel was conducting a bona fide “ongoing investigation” into any matter between July 1990, when we denied the bulk of petitioner’s confidential request for funds, and August 1992, when federal habeas corpus counsel was appointed, and does not assert that any delay in the presentation of the claims at issue here can be justified on the basis of an “ongoing investigation of another claim” rationale.

Contrary to the concurring and dissenting opinion of Justice Kennard, as we also explain in Robbins, supra, 18 Cal.4th 770, the ongoing investigation component of this basis for good cause is not “new,” and there is no unfairness in applying that requirement to petitioner. Nor does our application of the ongoing investigation requirement provide a reason or justification for reopening prior orders of this court that have barred a claim as untimely.

In sum, petitioner has not established good cause for delay on this or any other ground.

14 For guidance Concerning application of the exceptions to the bar of untimeliness, we note the following: Although we conclude that each of the claims concerning petitioner’s incompetence (Claims I, n, III, and X) fails to state a prima facie case for relief under state or federal law, for purposes of applying the first three exceptions to the bar of untimeliness set out in Clark, supra, 5 Cal.4th at pages 797-798, we “assume . . . that a federal constitutional error is stated, and we shall find the exception inapposite if, based upon our application of state law,” the exception is not met. (Robbins, supra, 18 Cal.4th at pp. 811, 812, fn. 32.) Pursuant to this approach, no exception to the bar of untimeliness applies here.

First, petitioner does not demonstrate that his alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial constitutes “error of constitutional magnitude” leading to “a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner.” (Clark, supra, 5 Cal.4th at p. 797, italics added.) The evidence underlying petitioner’s conviction was overwhelming, and there is no indication that the alleged errors substantially affected the evidentiary showing. The exception is inapposite.

Second, petitioner’s alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial does not suggest, much less establish, that petitioner “actually is innocent of the crime or crimes of which the petitioner was convicted” (Clark, supra, 5 Cal.4th at pp. 797-798), and it does not constitute “irrefutable evidence of innocence of the offense or the degree of offense of which the petitioner was convicted.” (Id. at p. 798, fn. 33.)

Third, based upon the facts of this case and the allegations presented in the petition, petitioner’s alleged incompetence-to waive counsel at the guilt phase or to stand trial did not result in a death penalty that was “imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death.” (Clark, supra, 5 Cal.4th at p. 798.)

Finally, petitioner’s alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial does not implicate the fourth Clark exception—that the petitioner was convicted or sentenced under an invalid statute. (Clark, supra, 5 Cal.4th at p. 798.)

15 As we explain in Robbins, supra, 18 Cal.4th 770, we shall not herein impose the bar of untimeliness as to any subclaim of the petition that asserts ineffective assistance of immediately preceding appellate or habeas corpus counsel. (See Robbins, supra, 18 Cal.4th at p. 815, fn. 35.)