Filed 7/28/22 P. v. Colt CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In February 2021, this court issued an opinion affirming the denial of a motion by Thomas Michael Colt to vacate his 1990 judgment of conviction for murder. (People v. Colt (Feb. 2, 2021, A158424 [nonpub. opn.].) The trial court had treated the motion as a petition for a writ of error coram nobis and denied it based on Colt’s lack of diligence in raising his claims, and because he had previously raised the claims in unsuccessful petitions for writs of habeas corpus. We held that a prisoner may not file a “motion to vacate judgment” to avoid the diligence requirement for a writ of coram nobis. Colt then filed an amended motion to vacate the judgment in the trial court, adding a “due diligence” section. The court denied the amended motion. Colt filed a notice of appeal, but neither his appointed counsel nor he identifies any colorable issue, so the appeal will be dismissed.

Factual and Procedural History

In 1990, Colt pled no contest to a charge of first degree murder (Pen. Code,[1] § 187) and admitted having used a deadly weapon during the offense (§ 12022, subd. (b)), in exchange for the dismissal of a special-circumstance allegation of torture (§ 190.2, subd. (a)(18)). He was sentenced to 26 years to life in prison. He has since filed many unsuccessful petitions for writs of habeas corpus in the trial court, this court, and the California Supreme Court.[2] In February 2019, Colt filed his first motion to vacate judgment, which the trial court denied in an order that we affirmed in 2021, as noted above, holding that the court properly applied the diligence requirement applicable to a petition for a writ of error coram nobis. (People v. Colt, supra, A158424 [nonpub. opn.].)

Colt’s amended motion, filed in July 2021, includes a five-page diligence section devoted mainly to listing 26 filings made or proceedings initiated by Colt between 1995 and 2021—mostly habeas petitions—and noting the issues raised in each. The motion states that, since Colt’s alleged discovery of certain issues in 1999, 2004, 2005, and 2009–10, respectively, “all [Colt’s] habeas petitions filed in court have contained [the] issue.” After quoting a statement from the order denying the original motion that his claims “ ‘have all been previously raised in one form or another, considered, and denied by this court,’ ” Colt’s amended motion states, “[w]hile this may be true, examination of the state court decisions in this case demonstrated that they have all declined to address the merits of those claims.”

The trial court issued an order in August 2021 treating the amended motion as a petition for a writ of error coram nobis, noting that it is “nearly identical to the initial motion with the addition of a brief diligence section [offering] as proof of diligence the facts that [Colt] raised his current claims in previous habeas petitions,” and denying relief based on the rule that, “[a]bsent a change in the law or facts, courts will not consider repeated applications of claims previously rejected” (In re Clark (1993) 5 Cal.4th 750, 767, superseded in other part by statute as noted in In re Friend (2021) 11 Cal.5th 720, 728–729.) The court added that the writ of coram nobis is not meant to be “a catchall by which those convicted may endlessly relitigate the legality of their convictions.” (People v. Kim (2009) 45 Cal.4th 1078, 1101.) Colt filed a timely notice of appeal, and this court appointed attorney David Bernstein to represent him.

Counsel filed a brief pursuant to the procedure set forth in People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). It describes the history of the case, the motion at issue, and the appeal. Counsel included a declaration that he had reviewed the record on appeal and had informed Colt that he did not perceive any viable issues to pursue, that he intended to file a brief to that effect, and that, under Serrano, supra, at page 503, this court would notify him of his right to submit supplemental briefing, as this court did.

Colt timely filed a document titled “Letter or Supplemental Brief.”[3] It contends first that the trial court erred in describing the amended motion’s five page “due diligence” section as “brief.” That passing characterization had no effect on the outcome of the motion. Colt’s substantive claim is that the court abused its discretion in applying the rule of In re Clark, supra, 5 Cal.4th 750 because, while he concededly has previously raised all of his current claims in habeas petitions that have been denied, the denial orders did not include express, reasoned explanations for rejecting each specific claim, or each specific justification for delay in raising a given claim. Colt complains that “Although [he] is required to explain and justify any delay in presenting new claims, the courts can simply dismiss those explanations as inadequate or unsatisfactory without reason or explanation for that dismissal.”

While a court may not dismiss a petitioner’s explanations “without reason,” the court is not required to include in its order a written explanation for its rejection of each specific claim, argument, or justification for delay. The summary denial of a petition equally triggers the procedural bar against future petitions reasserting the same rejected claims. (In re Clark, supra, 5 Cal.4th at p. 769 & fn. 13 [summary denial of petition “does not mean that the court has not considered the merits of the claims”].) Since no colorable basis for questioning the trial court’s order has been suggested by Colt or his counsel, the appeal will be dismissed.

Disposition

The appeal is dismissed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

[1] Statutory references are to the Penal Code unless otherwise stated.

[2] See HC-761, HC-793/386800, HC-1617, HC-1678, HC-1980, HC-2359, HC-2499, HC-2665, HC-2701, A078746, A086402, A108888, A111141, A121492, A152951, S089877, S138729, S185697.

[3] On receipt, the letter was inadvertently misplaced. On July 7, 2022, unaware of the letter, we issued an order dismissing the appeal as abandoned. After counsel informed this court that Colt had sent such a letter, which had been overlooked, we vacated the dismissal order, reinstated the appeal, and noted that we would reconsider it in light of the issues raised in the letter.