Habeas Corpus Petition

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    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.


    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.


    Generally speaking, a petition for rehearing should be filed in one of four circumstances: (1) where there has been a material factual error or omission in the court's opinion; (2) where an issue has either not been addressed or has only been superficially addressed; (3) where critical new authority has come to light which has gone unmentioned in the opinion; or (4) where the court has decided the case on a point which was not raised by the parties. As to this last category, Government Code section 68081 provides that rehearing is to be granted to allow the parties a fair chance to brief the point in question.

    With respect to omissions in the court's opinion, rule 2.500(c)(2) of the California Rules of Court sets forth a limitation to petitioning for review if a petition for rehearing was not filed. As a matter of policy, the Supreme Court will not consider any issue or material fact that was omitted from or misstated in the opinion of the Court of Appeal unless the omission or misstatement was called to the court's attention in a petition for rehearing. Thus, in this circumstance, a petition for rehearing is required as a condition precedent to seeking review.

    If you review the opinion and are unsure whether to file a petition for rehearing, contact the SDAP staff attorney who has been assisting or monitoring the case. The staff attorney will have reviewed the opinion and will be prepared to discuss whether a petition for rehearing should be filed.

    The petition for rehearing must be filed within 15 days of the issuance of the decision. (Cal. Rules of Ct., rule 8.268(b)(1).) The court has jurisdiction to rule on the petition or grant rehearing on its own motion for a period of 30 days following the issuance of the decision. (Cal. Rules of Ct., rules 8.264(b)(1) and 8.268(a)(2).)

    If rehearing is denied without a modification of the judgment, a petition for review is due within 31 to 40 days from the date on which the opinion was originally filed. (Cal. Rules of Ct., rule 8.264(c)(2).) If the judgment is modified, a petition for review is due within 31 to 40 days of the filing of the modified judgment. (Ibid.) Whenever the Court of Appeal modifies an opinion, its order “shall specify whether it effects a change in the judgment.” (Ibid..)

    Finally, an order for publication filed after the opinion restarts the Court of Appeal’s 30 day finality period, and a petition for rehearing can be filed within 15 days of the publication order. (Rules 8.264(b)(5) and 8.268(b)(1)(B).)


    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 8.500(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 8.504(d).)

    Generally, 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).) Specificaly, the petition must be filed within ten days after the decision is final. The decision is final in 30 days in most situations, unless the court orders otherwise. This is so, even if the Court of Appeal modifies an opinion without changing the outcome or issuing a new opinion. (Rules 8.264(b)(2)(B), 8.366(b)(4)) However, some types of decisions are final immediately. A decision summarily denying a writ petition is final immediately. (Rules 8.387(b)(2)(A), 8.490((b)(1).) But an exception to this rule is that if the decision denying a habeas petition is issued the same time as the decision in a related appeal, both decisions are final in 30 days, (Rule 8.490(b)(4)) (Also note that one must file one petition for review if the habeas matter is formally consolidated with the appeal. (Rule 8.500(d)) Otherwise, one must file separate petitions for review. (Rule 8.500(d))) The denial of a petition for writ of supersedeas is always final immediately. (Rule 8.264(b)(2)(A)) 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 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.

    A federal habeas petition may be filed on an official form which contains instructions.


    The United States Supreme Court grants certiorari in only a few state criminal appeals every year. However, a panel attorney should take a petition for writ of certiorari in those cases which have a strong, well-preserved issue of federal law as to which a reasonable argument can be made that review by the United States Supreme Court is necessary. Reasonable compensation will be paid for preparation of the petition if taking the petition was a reasonable step given the issue or issues presented. If you are in doubt, consult with your SDAP staff attorney.

    The petition is due within 90 days of the denial of review by the California Supreme Court. (Rules of the Supreme Court of the United States, rule 13.1.) If the petition is filed in forma pauperis, counsel need only submit the original and 10 copies. (Rule 39.2.)


    The direct appeal is often the first battle in a longer post-conviction war. If that appeal is lost, the client may eventually launch a collateral attack in the federal district court. His vehicle for that attack will be 28 U.S.C. § 2254, which authorizes persons in state custody to petition federal courts for writs of habeas corpus.

    When the conviction is fresh and the appeal new, a federal petition seems little more than a remote possibility. You nevertheless need to keep that possibility in mind. Although you will likely leave the field of battle after an unsuccessful appeal, your client may wish to struggle on. The way you handle his appeal will either help or hinder his post-conviction efforts. Assessing the likelihood that your client will eventually attack his conviction under section 2254 is necessary so that you can make informed decisions on appeal and protect his prospects for federal post-conviction relief.

    1. Briefing

    a. Initial Case Review

    When a new appeal comes into your office, you undoubtedly review it with an eye toward locating arguable error and determining what issues you will present in the brief. In addition, you should also be routinely assessing the likelihood that your client will eventually attack his conviction under section 2254.

    The longer the client will be in prison following an unsuccessful appeal, the more likely he is to eventually file a federal petition. The client serving a long term in the state prison will almost inevitably give serious consideration to filing a section 2254 petition. The inmate serving a lengthy prison term has nothing to lose by pursuing post-conviction relief: excepting service of the sentence or a pardon, it is his only lawful way out. Thus, regardless of your assessment of the merits of his appeal, a client facing a long prison term may well seek section 2254 review if his conviction stands up in the state courts.

    Conversely, a client may receive such a light sentence that a federal petition is precluded. Suppose for example that your client received a short sentence that will be fully served by the time he gets a decision on appeal. The federal district court will lack jurisdiction to review his conviction. A section 2254 action may be brought only by persons in state "custody." (28 U.S.C. § 2241(c)(3).) Once a client has served his prison time and been discharged from any parole term, he is no longer in "custody" and cannot petition for relief under section 2254. (Maleng v. Cook (1989) 490 U.S. 488, 492.) For the client serving a short sentence, the direct appeal in state court may be the only opportunity to attack his or her conviction.

    For the client serving a long sentence, however, the direct appeal may be just the first skirmish in a protracted engagement that will, years later, end up in federal court. For that client, one of your responsibilities is to handle his appeal in state court so that he is in the best possible position to pursue collateral relief in federal court.

    b. Preserving Issues For Collateral Review

    From the outset, your assessment of the likelihood of a section 2254 petition in the future, no matter how distant, should affect your handling of the appeal. Nowhere is this more true than in your decision regarding what issues to brief.

    Probably the most challenging task facing an appellate lawyer is deciding what issues to brief and what issues to forego. Typically, an appellate lawyer will first review the record to spot all arguable issues and then decide which particular issues to raise. As a matter of strategy, the common wisdom is that appellant's counsel should winnow out the weaker issues and focus on "one central issue if possible, or at most on a few key issues." (Jones v. Barnes, supra, 463 U.S. 745, 751-752.) One of the factors to be considered in deciding whether to forego an arguable issue is the likelihood that the client will eventually file a section 2254 petition.

    Your deciding to forego an issue on appeal directly impairs the client's ability to raise that issue in a section 2254 petition. You need to be aware that because of the interplay of federal and state law, foregoing an issue on appeal will probably prevent it from being presented later as a claim in a federal petition.

    As a prerequisite to asserting a claim in a section 2254 petition, a petitioner must show that he has exhausted his state remedies by previously presenting the claim in state court. (O’Sullivan v. Boerckel, supra, 526 U.S. 838, 842-845.) If you forego a claim on direct appeal, your client will likely never be able to exhaust the claim in state court. Under California law, foregoing an available issue on appeal amounts to a waiver, and your client will ordinarily be barred from resurrecting the issue in state collateral proceedings. (In re Harris (1993) 5 Cal.4th 813, 825; habeas corpus cannot serve as a second appeal.) Because he or she cannot present the claim in state court, your client cannot meet the exhaustion requirement. Your waiver of his claim on appeal will probably thus bar him from litigating the claim in federal collateral proceedings. (Coleman v. Thompson (1991) 501 U.S. 722, 729-732; claim which is procedurally defaulted under state law cannot be raised on federal habeas corpus.)

    As a caveat to the foregoing discussion, it should be noted that a defendant enjoys the federal constitutional right to the effective assistance of appellate counsel. (Evitts v. Lucey (1985) 469 U.S. 387, 393-400.) Thus, if appellate counsel unreasonably fails to raise an issue, a defendant may pursue a claim of ineffective assistance of appellate counsel on state habeas. By exhausting this federal issue on state habeas, the defendant can then proceed to federal court on his Sixth Amendment claim and the underlying issue which would otherwise have been procedurally defaulted.

    In protecting a client's right to pursue federal relief in the future, you must carefully research existing relevant federal case law. But, you must also anticipate reasonably foreseeable developments in federal case law. (Reed v. Ross (1984) 468 U.S. 1, 14-20.) An available issue might stand little hope of success in state court under existing precedent, but if that issue might foreseeably form a basis for relief in a future section 2254 petition, under either existing or reasonably foreseeable precedent, you should be wary of foregoing the issue. When a case is sufficiently serious that a federal petition can be anticipated, you must exercise utmost care to preserve issues that may be viable in the future when your client files a petition under section 2254.

    c. Making a Federal Case

    The real possibility that a client will eventually seek relief under section 2254 should also affect your framing of the issues on appeal. A claim for post-conviction relief is cognizable under section 2254 only if it arises under federal law. (Duncan v. Henry, supra, 513 U.S. 364, 365-366.) Violations of state law in obtaining a conviction may be important on direct appeal in state court, but they are utterly irrelevant in section 2254 proceedings. The only issues a federal petitioner can raise are federal ones. To preserve an error for federal review, you should therefore consider framing it on appeal as an issue of federal as well as state law.

    Under 28 U.S.C. section 2254(d)(1), a federal court must rely on the law “as determined by the Supreme Court” in granting relief. The quoted “phrase refers to the holdings, as opposed to the dicta” of the court’s decisions. (Williams v. Taylor (2000) 529 U.S. 362, 412.) Also, it must be shown that the state court decision was contrary to or an unreasonable application of United States Supreme Court decisional law.

    It is a regrettable reality that trial attorneys often fail to specify that their objections are being made under the federal Constitution. As a result, the state appellate court may find that any objection under the federal Constitution has been waived. (See People v. Gordon (1990) 50 Cal.3d 1223, 1254, fn. 6; admission of extrajudicial statement was reviewed only under the Watson standard since a "federal constitutional right of confrontation" objection was not made at trial.)

    Given the appellate courts' inclination to find waiver, it is incumbent upon appellate counsel to raise a claim of ineffective assistance of trial counsel when an adequate federal objection was not made at trial. In this way, a federal claim can be preserved when it would otherwise be lost.

    Turning to the substantive law, it is manifest that evidentiary error provides the most fertile area for transforming generic state error into a federal constitutional claim. In this regard, the constitutional foundation is found in either the Sixth Amendment's compulsory process and confrontation clauses or the Fourteenth Amendment's due process clause. (See Crane v. Kentucky (1986) 476 U.S. 683, 690.) Under these provisions, a state court commits federal constitutional error when it excludes highly relevant and necessary defense evidence. (Ibid., see also Rock v. Arkansas (1987) 483 U.S. 44, 53-56.) Importantly, a federal claim may be made even if no error was made under state law.

    Chambers v. Mississippi (1973) 410 U.S. 284 illustrates this principle. There, the defendant sought to admit a confession made by a third party. Under state law, the confession was inadmissible under the hearsay rule. Notwithstanding this well established state rule, the Supreme Court held that exclusion of the confession constituted a violation of the due process clause.

    "The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Chambers, supra, 410 U.S. at p. 302.)

    Chambers establishes a clear rule. So long as the defendant can demonstrate that he cannot receive a fair trial absent the admission of important evidence, the federal Constitution is implicated. This is so regardless of the exact form which the evidence takes. (Rock v. Arkansas, supra, 483 U.S. 44, 56-62; exclusion of defendant's hypnotically enhanced testimony was violative of her constitutional right to testify; Crane v. Kentucky, supra, 476 U.S. 683, 687-692; exclusion of evidence regarding the circumstances surrounding the defendant's confession violated his right to confront the witnesses against him.)

    A case handled by SDAP further illustrates the usefulness of the foregoing authorities. In Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, the defendant was charged with molesting a friend's daughter. In order to impeach the daughter's testimony, the defendant sought to introduce her prior false claim that her mother had molested her. Although it found that the trial court had erred by excluding the evidence, the Sixth District declared the error to be harmless under Evidence Code section 354. (People v. Franklin (1994) 25 Cal.App.4th 328, 336-337.) Importantly, the court failed to address the defense contention that the error rose to the level of a federal constitutional violation. Thankfully, the Ninth Circuit did not ignore the claim. Instead, finding that "[e]xclusion of the evidence deprived Franklin `of the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful testing"' [citations]," the court reversed the judgment. (Franklin, supra, 122 F.3d at p. 1273.)

    Although the law is much less certain in this area, it is also possible to argue that the erroneous admission of irrelevant and prejudicial evidence may constitute a federal due process violation. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-70; court considers such an issue.) A case from the Ninth Circuit provides an example of this type of error.

    In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the defendant was charged with murdering his mother who had died after her throat was slit. The forensic evidence showed that almost any kind of knife could have inflicted the fatal wound. At trial, the government presented evidence that the defendant: (1) had owned a Gerber knife in the past (but not at the time of the crime); (2) was a knife aficionado; (3) wore a knife in the past; and (4) scratched "Death is his" on his closet door with a knife. After finding that this evidence was completely irrelevant, the Ninth Circuit reversed the defendant's conviction.

    "His was not the trial by peers promised by the Constitution of the United States, conducted in accordance with centuries-old fundamental conceptions of justice. It is part of our community's sense of fair play that people are convicted because of what they have done, not who they are. Because his trial was so infused with irrelevant prejudicial evidence as to be fundamentally unfair, McKinney is entitled to the conditional writ of habeas corpus that the district court awarded him." (McKinney v. Rees, supra, 993 F.2d at p. 1386, fn. omitted, emphasis in original.)

    As McKinney makes clear, a defendant may be deprived of due process when the government seeks to shore up a weak case with a dose of highly prejudicial evidence. Thus, in an appropriate case, McKinney can serve as persuasive authority in support of a claim of federal error.

    Another example of turning state error into a federal contention may be found in the area of prosecutorial misconduct (or the more sanitized term "prosecutorial error"). (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In this regard, two possible theories exist.

    First, as the U.S. Supreme Court has indicated, a prosecutor's misconduct may be so egregious that it rises to the level of a due process violation. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Thus, in any case where the prosecutor engages in substantial misconduct, a federal claim should be advanced. (See People v. Samayoa (1997) 15 Cal.4th 795, 841; "`" [a] prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.].")

    Aside from a global due process claim, it is essential to note that some types of prosecutorial misconduct may violate specific constitutional rights. For example, if the prosecutor refers to facts outside the record, he or she is effectively acting as an unsworn witness who has not been subjected to cross-examination. (People v. Bolton (1979) 23 Cal.3d 208, 214-215, fn. 4.) Under these circumstances, a Sixth Amendment violation is shown. (Ibid.; accord People v. Johnson (1981) 121 Cal.App.3d 94, 104.)

    Finally, it should not be overlooked that there is authority for the proposition that cumulative prejudice flowing from mere state error can result in a federal due process claim. For example, this can occur "where the violation of a state's evidentiary rule has resulted in the denial of fundamental fairness, thereby violating due process, . . ." (Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284, 286; see also Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805, 814, fn. 6.) Thus, when the record shows that substantial error infected the proceedings, counsel should not hesitate to argue that the defendant was denied a fair trial under the federal due process clause.

    In short, as the foregoing survey demonstrates, garden variety state error can often be the basis for a viable federal contention. As a result, defense counsel should strive to be as creative as is reasonably possible in order to develop and preserve federal constitutional claims.

    d. Pursuit of the Federal Writ

    The federal proceeding can be initiated by filing a form petition which is included in the Appendix. In the alternative, the Northern District will accept a professionally prepared pleading which contains all of the necessary allegations. (SDAP will provide a sample upon request.) The initial appointment of counsel is discretionary. (18 U.S.C. section 3006A(a)(2)(B).) However, counsel must be appointed if an evidentiary hearing is to be held. (Rules Governing Section 2254 Cases in the United States District Courts, rule 8(c).)

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