Petitions for Review are Important

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 29(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 28(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 28(e) and 28.1. 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 28.1(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 28(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 28(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 28(b)(1).)

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. (Rule 28.1(d).)

The petition must be filed between 31 and 40 days following the issuance of the Court of Appeal’s opinion. (Rule 28(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 28(e)(2) and 45(e).) However, the court rarely allows a late filing. Thus, counsel should always set aside sufficient time to meet the deadline set forth in rule 28(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 issues.

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 appeal.)

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.
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November 15, 2006

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