If a State Court Habeas is Denied, How to Seek Review

It is important to understand from the outset that a person cannot file an appeal from an order denying habeas relief. Penal Code § 1506; see also In re Crow (1971) 4 Cal. 3d 613, 621 n. 8, 94 Cal. Rptr. 254.

However, the petitioner can seek further review by filing a new habeas corpus petition in the next highest court. People v. Gallardo (2000) 77 Cal. App.4th 971, 92 Cal. Rptr. 2d 217; People v. Garrett (1998) 67 Cal. App.4th 1419, 79 Cal. Rptr. 2d 803.  In other words, if the superior court denied relief, the petitioner can file a new petition in the court of appeal for the district in which the superior court is located.

There is no set timeline to file a petition in the court of appeal.  However, a petitioner should file the new habeas corpus petition in the court of appeal as soon as possible in order to avoid denial of the petition as untimely and meet the timeline for filing a federal habeas corpus petition if the state courts do not provide relief.  A good practice is to file the petition in the court of appeal no later than 60 days after the superior court denial.

As in the superior court, a petitioner who is not represented by an attorney should use the Judicial Council Form HC-001.  If possible, a petitioner who is not represented by an attorney should include any needed additional pages setting forth facts and arguments.  The new petition filed in the court of appeal should include all the information that was in the original petition and denial.  It should also be said in the statement of facts that a petition on the same issue was filed and denied in the superior court, and the superior court decision should be attached to the petition as an exhibit.  

Any relevant documents produced in discovery and a transcript of any hearing held in the lower court should also be filed as exhibits.  

A petitioner without funds should be able to get a transcript of an evidentiary hearing free of charge simply by sending a request asking the court to order the court reporter to prepare and provide a transcript for the purposes of taking the case to a higher level court. 

Gardner v. California (1969) 393 U.S. 367, 89 S. Ct. 580; 21 L. Ed. 2d 601.  If the court does not comply, the petitioner can try filing a motion in the court of appeal asking the court to order preparation of a hearing transcript.

A petitioner who is not represented by an attorney and is filing in the court of appeal need send only the original petition and exhibits. 

California Rules of Court, rule 8.380(c).  An attorney who files a petition either must use the court’s electronic filing system or get a hardship exception and then follow the court rules for formatting and the number of copies to be filed. California Rules of Court, rule 8.71; California Rules of Court, rule 8.384.  It is a good practice to serve the petition to the respondent by mailing a copy of the petition to the attorney general’s office. If the petitioner serves the petition, the petitioner should send a proof of service to the court.

Once the petition is filed with the court of appeal, the procedure is quite similar to that in the superior court.  However, there is no set timeline for a court to take action on the petition.  

If no evidentiary hearing was held in the superior court, the court of appeal will conduct an independent review of the issues. In re Rosenkrantz (2002) 29 Cal. 4th 616, 677, 128 Cal. Rptr. 2d 104; In re Smith (2003) 114 Cal. App. 4th 343, 360-361, 7 Cal. Rptr. 3d 655.

If an evidentiary hearing was held, the court of appeal will review the superior court’s factual findings to see whether they were supported by substantial evidence, and will independently review any questions of law. In re Collins (2001) 86 Cal. App. 4th 1176, 1181, 104 Cal. Rptr. 2d 108.

If no petition was brought in the superior court, or if the superior court failed to hold an evidentiary hearing or order discovery necessary to resolve material disputes about the facts, the court of appeal may issue an order to show cause directed to the superior court.  The superior court should then hold a hearing to decide the factual issues and should issue an order that includes a statement of reasons supporting its decision. Rose v. Superior Court of Los Angeles County (2000) 81 Cal. App. 4th 564, 96 Cal. Rptr. 2d 843.

Alternatively, the court of appeal (or the California Supreme Court, if the petition is being heard there) may appoint a “referee” to make necessary factual determinations. In re Riddle (1962) 57 Cal. 2d 848, 22 Cal. Rptr. 472.  Examples of questions submitted to a referee can be found in In re Hurlic (1977) 20 Cal. 3d 317, 142 Cal. Rptr. 443 and In re Branch (1969) 70 Cal. 2d 200, 74 Cal. Rptr. 238.  The referee will review evidence and hear arguments by both sides and make findings.  The referee’s report and findings and a transcript of the hearing will be filed with the court.  Any party may file a brief raising objections to the referee’s report.  The referee’s findings of fact are not binding, and the court may reach a different conclusion after they examine the evidence.

This article would not be possible without reference to the wonderful treatise, California Prison and Parole Law Handbook, which is written by the Prison Law Office.  We thank them.