After receiving an adverse result in the Court of Appeal,
it is the duty of appellate counsel to provide the client
with a reasoned and well informed opinion as to whether to
take a petition for review to the California Supreme Court.
When should a petition for review be taken and what is the
proper format for the petition?
As should be readily apparent, the overriding concern of counsel
should be whether the client will benefit by pursuing a petition
for review. In most cases, the client will have nothing to
lose since the Court of Appeal will generally have affirmed
the judgment in its entirety. However, in some cases, it may
be dangerous to file a petition for review.
In this regard, it is essential to note that the petitioner
has no control over the issues which the Supreme Court may
consider. This is so because the court has the express authority
to review the entire cause upon the filing of a petition
for review. (Cal. Rules of Ct., rule 8.516(a)(2).) Thus, in the
situation where the defendant obtains some benefit from the
judgment in the Court of Appeal, he or she must be carefully
advised as to the potential adverse consequences of taking
a petition for review.
If the Court of Appeal has not provided a remedy to your client,
there are at least four situations in which counsel generally
should file a petition for review: (1) where the Court of
Appeal's opinion is published; (2) where the Court of Appeal's
opinion rejects a published case; (3) where a good faith argument
can be made for a change in existing precedent; or (4) where
an issue must be preserved for federal review.
As to the first three of the cited categories, little need
be said. Obviously, if an opinion is published, the Supreme
Court will more closely scrutinize a petition for review.
Similarly, if there is a conflict in the case authority, good
grounds are present for a petition for review. (Cal. Rules
of Ct., rule 8.500(b)(2).) Moreover, if you feel that existing
law can and should be changed, it is your duty to advance
whatever good faith argument is available. (See People v.
Feggans, supra, 67 Cal. 2d 444, 447.)
With respect to the fourth category, it is essential that
a petition for review be filed in order to preserve a defendant's
viable federal constitutional issues. A petition for writ
of certiorari to the U.S. Supreme Court does not lie unless
a petition for review is taken. (28 U.S.C. section 1257; Flynt
v. Ohio (1981) 451 U.S. 619, 620.) The same requirement applies
before a writ of habeas corpus may be sought in federal district
court. (28 U.S.C. section 2254(b); O’Sullivan v. Boerckel
(1999) 526 U.S. 838, 839-840.)
Once you have decided to take a petition for review, your
goal is, of course, to prepare the most persuasive pleading
that you can. As a starting point in pursuit of that goal,
counsel should carefully study the requirements set forth
in California Rules of Court, rules 8.500(e) and 8.504. While
the Supreme Court will generally consider a timely filed petition
even though it contains technical defects, it is obviously
counterproductive to ignore the format required by the rules.
Rule 8.504(b)(1) provides that "the issues presented for review"
must be stated "[a]t the beginning of the body of the petition,
. . . ." In conformance with the cited rule, SDAP has adopted
the following format. At the beginning of our petition, we
employ a heading of Issues Presented for Review. Below the
heading, we include a numerical listing of our issues. Immediately
thereafter, we use a heading of Reasons for Granting Review.
In this section, we provide a terse summation of why the issues
in question meet the specific grounds for Supreme Court review
as specified in rule 8.500(b). In our opinion, this section is
most persuasive when it is limited to two or three pages.
Following the foregoing sections, your petition should have
the same format as an appellant's opening brief. (Rule 8.500(a).)
However, your legal argument should not be a mere reiteration
of your briefs in the Court of Appeal. Rather, your argument
should specifically describe and analyze the holding and reasoning
of the Court of Appeal. At the same time, you must also advise
the Supreme Court why your case is an appropriate vehicle
to consider unsettled or important questions of law. (Rule
In presenting your petition, you must strive to be as concise
as possible. Insofar as the Supreme
Court is compelled to consider literally hundreds of petitions
a month, the reader is much more likely to be drawn to a short
pleading. Moreover, unless you want to seek special permission
from the Chief Justice, your petition may not exceed 30 pages
in length if typewritten. If produced on a computer, a petition
must not exceed 8400 words, and must include a certificate
by appellate counsel stating the number of words in the document.
As was discussed above, the petition must be filed between
31 and 40 days following the issuance of the Court of Appeal's
opinion. (Rule 8.500(e)(1).) If you miss the deadline, the Supreme
Court has jurisdiction to grant relief from default for a
period of 20 days from the deadline. (Rules 8.500(e)(2) and 8.60(d).)
However, the court rarely allows a late filing. Thus, counsel
should always set aside sufficient time to meet the deadline
set forth in rule 8.500(e)(1).
1. Whenever a Federal Constitutional Issue Has Been
Raised in the Court of Appeal, Counsel Must Exhaust the Issue
in a Petition for Review Absent Unusual Circumstances.
The U.S. Supreme Court has held that a state prisoner may
not advance a claim of federal constitutional error on a federal
petition for writ of habeas corpus unless that issue has first
been presented to the state Supreme Court on a petition for
discretionary review. (O’Sullivan v. Boerckel, supra, 526
U.S. 838, 839-840.) In light of this rule, it is SDAP’s policy
that a panel attorney must raise all of a client’s federal
constitutional issues in a petition for review absent a compelling
reason not to do so.
Therefore, it is SDAP’s expectation that a panel attorney
will take a petition for review on all federal issues. If
a panel attorney believes that there is a good reason not
to do so in a particular case, counsel must first contact
a SDAP staff attorney before failing to exhaust the federal
As a final point, it should be noted that it is incumbent
upon counsel to specifically cite both the federal Constitution
and U. S. Supreme Court case authorities in state briefs.
Absent these express references, a federal court will not
entertain the client’s habeas petition. (Duncan v. Henry (1995)
513 U.S. 364, 365-366; federal due process claim was rejected
on federal habeas corpus since the defendant had merely cited
Evidence Code section 352 and the Watson standard on his state
2. Once a Petition for Review Is Denied, Counsel Should Promptly
Advise the Client of His or Her Federal Remedies.
When the California Supreme Court denies a petition for review
on a federal issue, the client has two remaining remedies:
(1) a petition for writ of certiorari to the United States
Supreme Court; and (2) a petition for writ of habeas corpus
in the federal district court in San Francisco. Appointed
counsel has no duty to pursue either of these remedies on
the client’s behalf. However, the client should be promptly
advised of the nature of the remedies, the filing deadlines
and the necessary pleadings.
A petition for writ of certiorari is due within 90 days of
the date on which the California Supreme Court denied review.
(Rules of the Supreme Court of the United States, rule 13.1.)
The format for the petition is specified in rule 14. An inmate
may proceed in pro per by filing a single copy of the petition
if it is accompanied by Form 4 of the Federal Rules of Appellate
Procedure. (Rules 39.1 and 39.2.) Since a prison custodian
must provide the client’s prison account records and sign
Form 4, the client should be advised to immediately begin
preparation of the form since the custodian is frequently
dilatory in providing the required signature and documentation.
Under 28 U.S.C. section 2244(d)(1), a federal habeas petition
must be filed within one year of the finality of the state
judgment. The one year period begins to run on the date when
either: (1) a petition for writ of certiorari to the U.S.
Supreme Court is denied; or (2) the 90 day period in which
to seek certiorari has run when no petition was filed. (See United States v. Clay
(2003) 537 U.S. 522, 528, fn. 3 [155 L.Ed.2d 88, 95].)
It should be noted that the one year statute of limitations
is tolled while a post-appeal state habeas petition is pending.
(28 U.S.C. sec. 2244(d)(2); see Carey v. Saffold (2002) 536
U.S. 214 [153 L.Ed.2d 260]; the time between the denial of
one habeas petition and the filing of a new petition in a
higher court is tolled so long as the degree of delay is reasonable.)
However, a client should carefully monitor his or her filing
deadline if he or she is relying on tolled time.
A federal habeas petition may be filed on an official form
which contains instructions.