California Rules of Court, rule 28(d) provides that two separate petitions for review are required when the Court of Appeal denies an appeal and a habeas petition “without issuing an order to show cause and without formally consolidating the two proceedings, . . . .” As a matter of course, the Sixth District Court of Appeal does not “formally consolidate” habeas actions with pending appeals.
As a result, rule 28(d) requires defense counsel to file separate petitions for review when the appeal and habeas petition are denied on the same day. This is true whether the habeas petition is denied by separate order or in the body of the opinion which resolved the appeal.
In some cases, clerks of the California Supreme Court have failed to enforce rule 28(d) when two petitions have been submitted and have telephoned appellate counsel with a request to submit only a single petition. If this occurs in one of your cases, you should ask the clerk to consult with John Rossi, the Assistant Administrator of the court. Mr. Rossi has advised SDAP that it is his intention to enforce rule 28(d) as written.
It should be noted that a petition for review is due within 40 days following the summary denial of a habeas petition if the petition was denied on the same day as the appeal was decided. (California Rules of Court, rule 24(b)(4).) However, if a habeas petition was summarily denied on a different date than that on which the appeal was decided, a petition for review is due within 10 days of the date on which the petition was denied. (California Rules of Court, rules 24(b)(2)(A) and 28(e)(1).) If habeas relief was denied following the issuance of an order to show cause, a petition for review is due within 40 days of the date on which the petition was denied.
January 28, 2004