A. HABEAS CORPUS
Habeas corpus is a relatively complex subject. This section
constitutes an overview on California habeas corpus practice
as it relates to the handling of criminal appeals. In this
regard, four topics will be addressed: (1) the issues which
may be raised on habeas corpus; (2) the timeliness requirements
for filing the writ; (3) the format for the petition; and
(4) the Sixth District's procedures concerning habeas actions.
1. When is it appropriate?
Generally speaking, the writ of habeas corpus is available
in any case where the trial court has acted in excess of its
jurisdiction. (In re Zerbe (1964) 60 Cal.2d 666, 667.) For
purposes of the writ of habeas corpus, "the term `jurisdiction'
is not limited to its fundamental meaning, and in such proceedings
judicial acts may be restrained or annulled if determined
to be in excess of the court's powers as defined by constitutional
provision, statute, or rules developed by courts. [Citations.]"
(Id., at pp. 667-668.)
As a practical matter, an attorney appointed by the Court
of Appeal will need to resort to a habeas writ in one of two
situations: (1) where direct appeal is a procedurally unsatisfactory
or unavailable remedy for the client; or (2) where it is necessary
to utilize facts outside the record in order to demonstrate
reversible error. In order to understand these categories,
the following examples should be helpful.
With respect to category one, a case will occasionally arise
where direct appeal is not an available remedy. This situation
is exemplified by the following hypothetical. Under Code of
Civil Procedure section 170.3, there are specified procedures
by which a party may attempt to disqualify a judge on the
grounds of actual prejudice. Pursuant to section 170.3, subd.
(c)(5), if the parties cannot agree upon a judge to hear the
motion, the duty falls upon the court clerk to notify the
Judicial Council which will then appoint a judge to decide
the motion. Assuming that the court fails to follow this procedure
and instead appoints a judge who denies the motion, it might
be contended that the order denying the motion was in excess
of the court's jurisdiction. However, pursuant to section
170.3, subd. (d), the remedy of appeal is precluded. Given
these circumstances, resourceful counsel will still be able
to pursue a habeas writ. (See Zerbe, supra, 60 Cal.2d 666,
1. Pursuant to the California Constitution,
all Superior Courts and appellate courts have the original
jurisdiction to grant habeas relief. (Article VI, section
10.) However, unless an appeal is pending, an appellate court
is unlikely to entertain a habeas petition which has not first
been presented to a lower court. (In re Moss (1985) 175 Cal.App.3d
913, 922.) It should be noted that if a Court of Appeal denies
habeas relief, it is the Supreme Court's preference that a
petition for review be filed in lieu of a renewed habeas petition.
(In re Reed (1983) 33 Cal.3d 914, 918, fn. 2.)
As a second example of category one, there may be circumstances
where direct appeal is simply not a sufficiently speedy remedy.
For example, assume that a defendant is sent to state prison
following the revocation of a grant of probation which had
in fact expired prior to the revocation. Under these circumstances,
the revocation would be unlawful and habeas relief would lie.
(In re Daoud (1976) 16 Cal.3d 879, 882.) Insofar as a habeas
action may be expeditiously decided by the Court of Appeal,
it would be appropriate to seek such relief rather than awaiting
the result of the slower process of appeal. (In re Newbern
(1960) 53 Cal.2d 786, 789-790; habeas relief lies when the
defendant will have served his sentence before his appeal
can be decided.)
With regard to category one, it is important to note that appeal is a preferred remedy and habeas corpus may not be used as a substitute for appeal. (In re Clark (1993) 5 Cal.4th 750, 765.) If an issue is cognizable on appeal, it is inappropriate to raise the issue on habeas corpus. If trial counsel has failed to make a sufficient record regarding an issue that would otherwise be subject to appeal, a claim of ineffective assistance of counsel may be raised on habeas corpus.
In the usual case, habeas relief will be sought when it is
necessary to advert to facts which are outside the record
on appeal. Frequently, these facts will be employed to establish
the evidentiary basis for a claim of ineffective assistance
of counsel. (See People v. Pope (1979) 23 Cal.3d 412, 426-427,
fn. 17; a habeas petition is properly joined with a direct
appeal in order to establish a Sixth Amendment violation;
accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
However, other issues, such as the involuntary nature of a
plea, may also be raised by a habeas writ which is ancillary
to the appeal. (See In re Tahl (1969) 1 Cal.3d 122, 124.)
Insofar as there is no statutory time limit on the filing
of a habeas petition, the courts are vested with the discretion
to determine whether a petition has been timely filed. On
this point, the Supreme Court has cautioned counsel that the "petition should be filed as promptly as the circumstances
of the case allow. [Citation.]" (In re Stankewitz (1985) 40
Cal.3d 391, 397, fn. 1.) Thus, when counsel has been appointed
on a case, it is imperative that any factual investigation
which may lead to a habeas petition should be undertaken as
soon as possible. Moreover, as a general rule of thumb, if
counsel plans on joining a habeas petition with his direct
appeal, the petition should be filed at the same time as appellant's
opening brief or, at the least, no later than the reply brief.
2. Ineffective Assistance of Counsel Claims.
The topic of ineffective assistance of counsel is one that
excites a lot of strong feelings in trial and appellate attorneys
and judges. The viewpoints and opinions vary greatly. On the
one hand, you have people like the late Chief Justice Burger
who say that as many as half of the attorneys who appear in
court ill serve their clients' interests. On the other hand,
former Sixth District Presiding Justice Agliano stated that
ineffective assistance claims are too frequently made and
mostly unjustified, resulting in damage to the profession.
Of course, regardless of the judicial popularity of the issue,
appellate attorneys are under a duty to raise arguable issues
on behalf of their clients, including ineffective assistance.
Unfortunately, some appellate attorneys are becoming reluctant
to raise such issues, even when they have arguable merit,
because they feel the appellate bench has become so hostile
that it is counter-productive to raise them. The hostility
of some appellate judges toward IAC claims has been fueled
by poorly investigated and/or poorly conceived attacks on
trial counsel by appellate attorneys. To avoid such problems,
we have developed policies regarding the investigation of
ineffective assistance claims.
There are two things we require that you do before raising
an ineffective assistance of counsel claim: (1) communicate
with the trial attorney to see what can be offered in terms
of explanation or justification for what you think is arguable
ineffectiveness; and (2) consult with SDAP. These requirements
apply whether the case is assigned to you on an independent
or assisted basis.
The first requirement is an absolute prerequisite to arguing
ineffective assistance. First of all, you may find out from
the trial attorney that the objection you thought the trial
counsel missed was actually made, but not put on the record.
If this is the case, you can seek a hearing in the trial court
to settle the record to reflect that the objection was made.
(See Marks v. Superior Court, supra, 27 Cal.4th 176, 192-194.)
Following this course benefits the client, because the issue
can then be raised directly as judicial error, without scaling
the barriers of Strickland v. Washington (1984) 466 U.S. 668,
regarding proof of prejudice. It also demonstrates your competence
in investigating the situation so that it may be accurately
presented to the Court of Appeal. And, of course, trial counsel
will be glad to have encountered an appellate attorney who
has enough professional courtesy to inquire, before reflexively
raising an ineffective assistance claim.
In other cases, there will be an act or omission, clearly
on the record, which raises a substantial question of trial
counsel ineffectiveness. You must communicate with the trial
counsel, preferably by letter, telling trial counsel what
your concerns are, and asking the trial counsel to respond
in writing stating his or her reasons for making the act or
omission. From trial counsel, you may find reasons outside
the appellate record which gave counsel a reasonable tactical
basis for his or her conduct. Remember, a “fair assessment
of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time."
(Strickland, supra, 466 U.S. at p. 689.) Sometimes, trial
counsel base decisions on what evidence to introduce or which
witnesses to call on what the client told them. Particularly
in such cases, raising an ineffective assistance of counsel
claim without proper communication with trial counsel and
your client can be like entering a minefield, with very harmful
revelations surfacing after you have waived the attorney-client
privilege by attacking counsel. (See In re Gray (1981) 123
Cal.App.3d 614, 617; attorney-client privilege “is waived
only as to issues raised in the petition . . . .”)
Generally, until you know trial counsel's reasons for acting
or failing to act, you simply cannot know whether or not there
was "an informed tactical choice within the range of reasonable
competence, . . . ." (People v. Pope, supra, 23 Cal.3d 412,
425.) As Pope stated, “[h]aving afforded the trial attorney
an opportunity to explain, courts are in a position to intelligently
evaluate whether counsel's acts or omissions were within the
range of reasonable tactical competence." (Id., at p. 426,
Only after you have received the reasons from trial counsel
are you in a position to evaluate the merit of an ineffective
assistance of counsel claim. If reasons are given which clearly
establish a reasonable tactical basis for the decision, the
issue should be abandoned. If not, trial counsel's letter
indicating either lack of knowledge or a professionally unreasonable
basis for the challenged conduct can be the basis for drafting
a declaration for trial counsel's signature which can be used
in support of a habeas petition. It has been our experience
that a professional approach by the appellate attorney to
trial counsel, including a straightforward statement of why
you think there might be an ineffective assistance of counsel
issue and a request for explanation, often results in the
same type of unemotional, professional response by trial counsel.
We have had trial counsel, despite the obvious professional
disincentives, be very candid and cooperative in admitting
a lack of research or knowledge on a particular point, when
they feel they have been fairly treated by appellate counsel.
The second requirement we have for raising an ineffective
assistance of counsel claim is that you call SDAP and discuss
it with a staff attorney before raising it. What we will do
is check to make sure you have an arguable claim as to each
prong of the IAC analysis. Under Strickland, you must show:
(1) professionally deficient performance in light of the circumstances
known to trial counsel; and (2) prejudice to the defense.
(For the precise standard of prejudice under Strickland, see
People v. Howard (1987) 190 Cal.App.3d 41, 48, which defines
it as somewhere between Chapman and Watson, or as "a significant
but something-less-than-50 percent likelihood of a more favorable
For example, missing an objection to damaging evidence may
be professionally deficient conduct, for which there is no
reasonable tactical justification. However, the evidence may
have concerned an issue on which the prosecution produced
three stronger pieces of undoubtedly admissible evidence.
Or it may concern an issue that was uncontested. In such circumstances,
you probably do not have a decent argument for prejudice,
and should forego the claim. Likewise, you may have a decision
that in hindsight was severely prejudicial to your client's
case, but which was totally reasonable under the circumstances
when made and was thus not arguably professionally deficient.
Also, sometimes the issue you may want to get at is better
raised in terms of judicial error, rather than IAC. For example,
we had a case where a panel attorney raised an issue of prosecutorial
misconduct during closing argument. To overcome the lack of
defense objection to the argument, the panel attorney threw
in an alternative IAC claim, i.e., if the prosecutor's argument
was error, but of the kind that could have been cured by admonition,
it was IAC to fail to make the objection. The trial counsel
involved called, understandably upset, because the prosecutor's
argument was based on an instruction to which defense counsel
had objected on the record during the pre-argument instruction
conference. The argument should have been raised purely as
instructional error since it is not prosecutorial misconduct
to argue an instruction the trial judge has approved, nor
is it ineffective assistance of counsel to fail to object
to such argument.
The point of these policies is to make sure that you, as appellate
attorney, are conducting the investigation of potential ineffective
assistance claims in a competent and professional manner.
Such an approach tends to defuse the defensiveness and emotionalism
which often attend these issues. It also helps ensure that
appellate courts are not desensitized to meritorious IAC claims
by frivolous claims.
3. Compensation for Habeas Work.
Prior to 1998, a panel attorney in the Sixth District had
to make a motion to expand appointment in order to receive
any compensation for work done on habeas petitions. In 1998,
the court changed its policy, and allowed SDAP to determine
both if the bringing of a habeas petition was reasonable,
and to award compensation up to the compensation guideline
of twelve hours. If a claim for a habeas petition exceeded
the guideline, and an amount over the guideline was being
recommended by SDAP, that recommendation had to be sent to
the Presiding Justice for determination of reasonable compensation
for the habeas petition. The policy change was approved by
the Sixth District Court of Appeal with the understanding
that it would apply only to petitions in which the panel attorney
had consulted with SDAP and received approval prior to filing
4. Requests for Investigation and Expert Fees.
In some cases, the assistance of a professional investigator
or expert would greatly advance the client’s interests. Pursuant
to Penal Code section 1241, the Court of Appeal has the authority
to award a reasonable sum for “necessary expenses.” In some
appellate courts, appointed counsel is entitled to expert
investigation funds without prior approval. (See California
Supreme Court Policies Regarding Cases Arising From Judgments
of Death, Section 2-2.3; “[w]ithout prior authorization of
the court, counsel may incur expenses up to a total of $3000
for habeas corpus investigation . . . .”)
The Sixth District does not reimburse investigative expenses
unless the court has approved them. Thus, unless you are willing
to risk paying for investigative expenses out of your own
pocket, you should not expend investigative fees until they
have been approved by the Court of Appeal.
In order to seek investigative or expert fees, counsel must
file an ex parte motion. The motion must specify the lines
of inquiry which the investigator or expert will pursue. (People
v. Faxel (1979) 91 Cal.App.3d 327, 330.) The showing must
be as specific as possible. (Corenevsky v. Superior Court
(1984) 36 Cal.3d 307, 320.)
If the Court of Appeal denies the motion, this fact should
be mentioned in the pleading section of the habeas petition.
It should be alleged that the defendant would have made a
better factual presentation had the motion been granted. In
this way, the defendant will be able to broaden his factual
showing in a subsequent federal habeas proceeding if he is
able to obtain investigative funds from the federal district
5. Essential Components.
Insofar as the format of the petition is concerned, there
are four essential components: (1) the pleading; (2) the verification;
(3) the points and authorities; and (4) any supporting exhibits.
Obviously, each of these portions requires careful attention.
With respect to the pleading, it is essential to note that
a habeas action is a proceeding which is separate and apart
from a pending appeal. Thus, the pleading must, standing alone,
state a prima facie case for relief. (People v. Duvall (1995)
9 Cal.4th 464, 474-475.) In order to state such a case, the
pleading must allege: (1) an unlawful restraint on the petitioner's
liberty; (2) if he or she is incarcerated, the place of imprisonment
and the name of the prison custodian; (3) the judgment upon
which the petitioner's restraint is based; (4) the essential
procedural and substantive facts of the case; (5) the legal
claim upon which relief is sought; and (6) a prayer for relief.
Insofar as the verification is concerned, it may be signed
by the petitioner. However, if time is wasting and the petitioner
is located outside the jurisdiction, counsel may execute the
verification. Importantly, the verification must be based
on personal knowledge. In this context, personal knowledge
may be based on a review of transcripts and court documents.
However, if the verification is made on other than personal
knowledge, it will be defective and the petition will be denied.
(People v. McCarthy (1986) 176 Cal.App.3d 593, 596-597.)
1. However, when a related appeal is pending,
the cover of the habeas petition should reveal that fact.
In addition, in the interests of judicial economy, the pleading
can contain a request that the court take judicial notice
of the record on appeal. In the absence of such a request,
the burden falls on the petitioner to otherwise present an
adequate record in support of the petition. (See Sherwood
v. Superior Court (1979) 24 Cal.3d 183, 186-187; In re Saunders
(1970) 2 Cal.3d 1033, 1047-1048.) Although California Rules
of Court, rule 8.252(d)(1) requires a separate motion in support
of a request for judicial notice, the Clerk of the Sixth District
has informally indicated that the court will not enforce rule
8.252(d)(1) in habeas proceedings.
1. When a defendant is on probation or parole, habeas relief
lies since he or she is deemed to be in the constructive custody
of the state. (In re Azurin (2001) 87 Cal.App.4th 20, 23.)
Following the verification, the next portion of the document
should be a memorandum of points and authorities. The document
should closely resemble an appellant's opening brief. Thus,
it should commence with an appropriate statement of facts
which should be followed by legal argument. Importantly, even
if the habeas action is related to a pending appeal, the facts
and legal argument must stand alone and cannot be incorporated
by reference from another brief. This is so since the habeas
action is a separate legal proceeding unless and until it
is formally consolidated with the appeal. (In re Ronald E.
(1977) 19 Cal.3d 315, 322, fn. 3.)
As the final portion of a habeas petition, counsel will want
to include any relevant declarations or other exhibits which
bear on the issues in the case. If the exhibits are few in
number, they may be included at the back of the brief so long
as they are properly labeled. If the exhibits are lengthy,
they should be lodged with the court under separate cover.
Only a single copy of the exhibits need be lodged.
The denial of a petition becomes final immediately if the
Court of Appeal has not previously issued an alternative writ
or order to show cause. (Cal. Rules of Ct., rule 8.264(a)(2)(A).) That
means that a petition for review from summary denial of a
petition for writ of habeas corpus must be filed within ten
days. (Cal. Rules of Ct., rule 8.500(e)(1).)
However, the denial of a petition for writ of habeas corpus
that is filed on the same day as the decision in a related
appeal becomes final at the same time as the related appeal.
(Cal. Rules of Ct., rule 8.264(b)(4).) In this circumstance, a petition
for review in the habeas proceeding is due between the 31st
and 40th days following the Court of Appeal’s order denying
relief. (Cal. Rules of Ct., rule 8.500(e)(1).)
It is essential to note that Rule 8.500(d), California Rules
of Court, requires the filing of two separate petitions for
review if the Court of Appeal denied a petition without an
order to show cause and did not formally consolidate the appeal
and writ proceedings. For example, if the habeas petition
is denied on the same day, either by separate order or in
the appellate opinion, but the appeal and habeas were not
formally consolidated, two petitions for review must be filed
(i.e. one for the direct appeal and one for the habeas petition).
Each petition would be due within 31 to 40 days of the Court
of Appeal’s resolution of the two proceedings.
B. WRITS OF MANDATE OR PROHIBITION
Appointed counsel on appeal will encounter circumstances when
an issue is not reviewable on appeal and a petition for writ
of mandate or prohibition is necessary. For example, a petition
for writ of mandate is necessary to challenge the denial of
an application for certificate of probable cause. (See People
v. Holland, supra, 23 Cal.3d 77, 84.)
A denial of bail pending appeal by the trial judge which is
either procedurally defective or an abuse of discretion must
be challenged by way of petition for writ of mandate.
Rule 8.490, California Rules of Court, specifies the form, content
and necessary supporting documentation for petitions for writ
of mandate or prohibition. The Clerk of the Sixth District
Court of Appeal has been generous in filing petitions with
leave to correct minor defects within a short period of time.
However, it is best to pay particular attention to the rules
so the court will get past the form to the substance of the