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PETITIONS

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, 667-668.)

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, fn. omitted.)

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 verdict.")

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 the petition.

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 court.

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.

6. Finality.

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 claim.

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