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dependency articles

 

How to Obtain Habeas Petition Relief in Dependency Cases

An Article, Notes, & Samples
by Valerie E. Sopher, CCAP Panel Attorney

 

Article Outline: (click on tab to show and hide details)

1. When to file petition for writ of habeas corpus

(a) most often used when raising ineffective assistance of counsel (IAC) and IAC not obvious from the record

in general, proper way to raise IAC is by writ of habeas corpus, not appeal In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn 1)

habeas proper vehicle for IAC where factual basis for the claim rests on evidence not contained in the record on appeal (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136; In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1101; In re Darlice C. (2003) 105 Cal.App.4th 459, 463)

IAC raised in appeal o.k. where appellate record demonstrates no satisfactory explanation for trial counsel's action or inaction (In re S. D. (2002) 99 Cal.App.4th 1068, 1077 citing People v. Pope (1979) 23 Cal.3d 412, 426; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253)

IAC in dependency generally cognizable on habeas petition (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1659, 1667.)

habeas allowed for review of IAC in order terminating parental rights (In re Darlice C. (2003) 105 Cal.App.4th 459 [3rd DCA]; In re O.S. (2002) 102 Cal.App.4th 1402, 1406, fn. 2 [4th DCA, Div. One]; In re Carrie M. (2001) 90 Cal.App.4th 530 [2nd DCA, Div. 5])

Darlice C. refused to follow In re Meranda P. (1997) 56 Cal.App.4th 1143, to the extent Meranda P. held that an order terminating parental rights is not subject to collateral review by habeas corpus (In re Meranda P. at pp. 1161-1162)

cf: unpublished 3rd DCA opinion refused to go as far as extending Darlice C. renunciation of In re Meranda P. to its bar of review of antecedent orders in 366.26 appeal (In re Dakota B., No. C042451 (Cal.App. Dist.3 04/30/2003)

[Practice note in 5th DCA: In the motion to expand appointment, counsel should be prepared to explain why the situation is not covered by Meranda P. or state that Meranda P. is wrongly decided.]

(b) other methods for getting evidence outside record before court

[Caution: the recent ruling by the Supreme Court in In re Zeth S.(2003) 30 Cal.4th __, concludes that "consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders," overruling In re Jonathan M. (1997) 53 Cal.App.4th 1234, Eileen A. (2000) 84 Cal.App.4th 1248, In re Jeremy S. (2001) 89 Cal.App.4th 514, and Jayson T. (2002) 97 Cal.App.4th 75, to the extent they are inconsistent with this decision.]

(c) petition for writ of prohibition/mandamus

where entire record of the proceedings is before the court; writ review provides speedier and more effective relief and accommodates the strong policy of expediting appellate review of all juvenile court orders affecting the welfare of minors (In re Kristin W. (1990) 222 Cal.App.2d 234, 248-249 [pre-Rule 39.1B case raising insufficiency of the reunification plan and the court's failure to exercise its jurisdiction concerning visitation reviewable by extraordinary writ]

Oops!: "We note the prayer of the habeas corpus petition also refers to mandamus relief. Since Darlice C. seeks relief premised on issues and factual material not tendered to the juvenile court, mandamus relief is not available." (In re Darlice C. (2003) 105 Cal.App.4th 459, 462, fn 2.)

for discussion of other types of petitions/writs see (see California Juvenile Dependency Practice, Vol 2. §10.82, et seq. Cal CEB 2002.)

(d) appeal vs. habeas petition

habeas must be filed concurrently with appeal
file habeas [or application to expand] concurrently with AOB or as soon thereafter as possible (In re Carrie M. (2001) 90 Cal.App.4th 530, 534 ["a parent is entitled to raise a claim of ineffective assistance of counsel in connection with a parental rights termination order by habeas corpus petition filed concurrently with an appeal from the termination order"])

appeal must be pending to preserve habeas viability
In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161 [Fifth DCA] barred review of order terminating parental rights by habeas petition in part relying on Adoption of Alexander S. (1988) 44 Cal.3d 857, 867-868 [habeas corpus can't be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment]; but termination order not final if appeal has been filed (see In re Darlice C. (2003) 105 Cal.App.4th , 465-466 [since appeals remained pending, orders terminating parental rights were not final and Alexander S. no bar to habeas corpus relief]; see also In re Carrie M. (2001) 90 Cal.App.4th 530, 533)

(e) arguments in appeal and habeas may or may not be the same

In re O.S. (2002) 102 Cal.App.4th 1402: appeal asserted father denied due process when parental rights terminated because no timely notice of detention, jurisdiction, and disposition hearings; petition asserted IAC because counsel did not object to the lack of notice or establish presumed father status

In re Darlice C.: appeal raised juvenile court failed to consider sibling relationship exception (366.26 (c)(1)(E) )/IAC if failure to raise deemed waiver; court failed to consider minors' wishes; minors' counsel conflict of interest; adoptability; habeas raised (c)(1)(E) exception, IAC based in part on additional facts not in the record, and adoptability

2. Researching habeas issues

(a) most research conducted during normal course of preparing opening brief

per CCAP ethics seminar 1/21/03:no affirmative duty to investigate potential habeas issue, however, if something brought to your attention by the record then follow-up

"Appointed counsel on appeal has a "duty ... to present defendant's case on direct appeal to the best of his ability. We know of no authority and cannot conceive of any holding that counsel appointed to prosecute a direct appeal has a duty to file or to prosecute an extraordinary writ believed to be desirable or appropriate by the defendant. We hold that there is no such duty." (In re Clark (1993) 5 Cal.4th 750, 783, fn. 20 citing In re Golia (1971) 16 Cal.App.3d 775, 786.)

duty to advise client of result of investigation only if you have a meritorious issue and how to proceed

(b) prepare declaration from client (usually essential)

(c) obtain information from trial counsel

in habeas corpus, trial counsel is afforded the opportunity to explain trial strategy (People v. Pope (1979) 23 Cal.3d 412, 426.)

declarations on IAC admissible in writ proceedings when trial counsel's statements are declarations against interest because they establish that trial counsel had no tactical reason for the action or inaction complained of on appeal (See Evid. Code Sec. 1230) and when they are statements of trial counsel's then-existing state of mind and the evidence is offered to prove or explain the acts or conduct of trial counsel (In re Arturo A. (1992) 8 Cal.App.4th 229, 243; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658)

call or write trial counsel; send trial counsel declaration to sign or allow counsel to prepare own declaration

SDAP program 5/3/03: communicate with trial attorney in writing so you have something in writing if counsel will not sign a declaration

if trial counsel is non-responsive, send state bar letter (see attached); SDAP 5/3/03 program: if no response to state bar letter, consider contacting state bar and/or asking court to intervene

Note: only a finding of IAC is reported to state bar but there are [usually no consequences because they do not have staff to follow up such complaints]

consider reviewing trial counsel's file

(d) include your declaration if trial counsel did not sign declaration or prepared a declaration inconsistent with information given to you

(e) optional: expert trial attorney declaration to show what competent attorney would have done

evidence of reasons for counsel's tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition (In re Arturo A. (1992) 8 Cal.App.4th 229, 243)

3. Which court to file - Court of Appeal or superior?

See California Juvenile Dependency Practice, Vol 2. §10.112 Cal CEB 2002

Courts of Appeals have not been open to granting habeas petitions in dependency cases, so may want to file in superior court; but opinion in Darlice C. may open up more filings in appellate courts; if appellate court issues OSC, will most likely end up back in juvenile court anyway for evidentiary hearing

4. Application to Expand Appointment

(a) required in Third and Fifth Districts; not required in First or Sixth Districts

Note: even though no application required in Sixth District, must consult with panel attorney before filing habeas petition (because SDAP is co-counsel); CCAP advises same in manual; FDAP manual says to consult buddy in assisted cases

(b) critical: prepare declarations that will be used in habeas petition and attach to application

declarations state the habeas argument, will strengthen application and counsel will be paid for preparing application even if appellate court denies request to expand (see sample application and declaration attached) - this is where you make your case for habeas relief

if application to expand denied, consider drafting a habeas petition for client in pro per, obtain signature and file for client in pro per; counsel will not be paid for this work; see above for ethical duty to inform client

5. The habeas petition

(a) In general

rules applicable to proceedings on a writ of habeas corpus in the superior court are governed by Penal Code sections 1473-1508 and California Rules of Court 4.551-4.552 (California Juvenile Dependency Practice, Vol 2. §10.113 Cal CEB 2002)

habeas petition consists of (1) the allegations, (2) a verification and (3) memorandum of points and authorities

if not on approved Judicial Council form, petition must comply with Penal Code section 1474 (Cal. Rules of Court, rule 4.551(a)(2))

file habeas with AOB or as soon as possible thereafter
petition must be filed "concurrently" with appeal (In re Carrie M. (2001) 90 Cal.App.4th 530, 534

(b) The petition

allegations similar to a civil pleading; each separately numbered paragraphs are specific allegations that, if habeas granted, respondent must specifically respond to and petitioner will have to defend allegations in traverse/denial

necessary allegations (see sample):

  • identify superior court proceedings and concurrent related appeal
  • identify parties: petitioner as minors' parent, respondent superior court, minors and DSS real parties in interest
  • request DCA take judicial notice of record on appeal
  • brief factual recitation of violation
  • refer to Statement of Facts below
  • no other plain, speedy, or adequate remedy at law because factual support for petition not in the record
  • petitioner's legal right has been violated
  • relief sought and authority
  • authority for declarations from trial and appellate counsel
    (see also Dependency Practice, Vol 2. §10.113 Cal CEB 2002 - add ¶ that minor suffers from illegal restraint because unlawful termination of P rights in violation of fundamental rights - not in attached sample)

relief requested:

  1. take judicial notice of the record on appeal in related appeal pursuant to Evid. Code §§452, subdivision (d), and 459 (granted in Darlice C. (fn. 1);

  2. consolidate petition for consideration with the related appeal which is now pending in this court;

    when petitioner in a habeas corpus action requests consolidation of a writ proceeding with a pending appeal, the proper procedure is to grant consolidation and issue an order to show cause (People v. Frierson (1979) 25 Cal.3d 142, 158; but consolidation request denied in Darlice C. because court issued OSC returnable to superior court (fn 4) )
  3. issue a writ of habeas corpus and/or order to show cause, commanding respondent court to vacate the orders terminating parental rights or to show cause why the relief sought in the petition should not be granted (granted in Darlice C.); and,

  4. grant such other relief as is deemed to be appropriate in the interests of justice.

(c) Verification

application for writ is made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf must be included by person making the application (Pen. Code sec. 1474(a); see verification by attorney in sample habeas petition attached)

(d) Memorandum of Points and Authorities

include Statement of Facts - do not incorporate by reference from AOB

decide which arguments go into habeas

must include argument that habeas petition proper to raise IAC, especially if termination of parental rights in any court but Third (and especially Fifth and Second DCAs) (see attached sample argument and In re Darlice C. opinion)

see attached notes for IAC standard

habeas argument incorporates evidence in declarations if redrafting AOB argument/Statement of Facts, change "appellant" to "petitioner"

(e) Attach declarations and exhibits

(f) Proof of service

serve juvenile court (the respondent) and "counsel for each party who is represented by separate counsel and on each party appearing in person" (Cal.Rules of Court, rule 40(f)); Department and minors as real parties in interest; Brad Bristow suggests also serving DA to comply with Pen. Code section 1475)

6. Court ruling on habeas petition

(a) Options

  1. Court of Appeal may deny the petition (Cal. Rules of Court, rule 4.551(a)(4).)

  2. Court may request informal response to habeas petition and allow a reply (Cal. Rules of Court, rules 60(2))

    court must issue an OSC or deny petition within 45 days after receipt of informal response (CRC 4.551(a)(5)

  3. Court of Appeal may grant habeas, vacate judgment and remand for new hearing and dismiss appeal as moot (In re O.S. (2002) 102 Cal.App.4th 1412-1413)

  4. Court of Appeal may issue an order to show cause, "returnable before the superior court," sitting as a juvenile court, directing the Department to show cause why the relief prayed for in the habeas proceeding should not be granted (In re Darlice C. (2003) 105 Cal.App.4th 459, 467 [court essentially stayed appeal, took judicial notice of appeal and issued order to show cause requiring habeas claim be adjudicated before the appeals are final, relying on In re Carrie M. (2001) 90 Cal.App.4th 530, 535 [habeas petition may be decided during pendency of appeal])

    An order to show cause is a determination that the petitioner has made a showing that he or she may be entitled to relief. It does not grant the relief sought in the petition. (Cal. Rules of Court, rules 4.551(c)(3), 4.550(2).)

    if petitioner has made prima facie showing entitled to relief; the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved, court issues an order to show cause (Rule 4.551(c)(1))

(b) appointment of counsel

upon issuing OSC, court must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel (Cal. Rules of Court, rule 4.551(c)(2); in Darlice C. court directed juvenile court to appoint appellate counsel to represent petitioner in habeas proceedings)

but see Coleman v. Thompson (1991) 501 U.S. 722, 756-757; People v. Kipp (2001) 26 Cal.4th 1100, 1139-1140 (no constitutional right to counsel in a habeas);

(c) finality of opinion

Court of Appeal order denying habeas petition not appealable but may seek petition for review (Cal. Rules of Court, rule 24(b)(4); Dependency Practice, Vol 2. §10.116 Cal CEB 2002; cf: Pen. Code 1507, superior court order denying habeas appealable)

Query: could county appeal/petition for review and get a stay of OSC? probably but not entirely sure about this one

if court grants OSC returnable to superior court, DCA no longer has jurisdiction over habeas and opinion cannot be modified; order is final that day (Cal. Rules of Court, rule 24(b)(4).) Rule 107 does not apply [appellate judgment final 15 days after judgment pronounced and must seek modification within that time (Cal. Rules of Court, rule 107(a), (b))

if DCA directs superior court to appoint appellate counsel to represent client, counsel cannot request modification of opinion on this point

if appeal, consider filing application to expand appointment to include associate counsel (see below)

7. Considerations if appellate counsel appointed to represent client in superior court

(a) consider potential conflicts of interest

  1. counsel may need to testify at evidentiary hearing if declaration from appellate counsel supported habeas petition

    Note: California Professional Rules of Conduct Rule 5-210. [Member as Witness] (attached) barring advocate from testifying in certain situations does not apply to non-jury matter, however, better practice is to obtain informed, written consent of client. (See also Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 579)

  2. if appellate counsel inexperienced at trial work, potential IAC from representation at evidentiary hearing and appellate counsel will be in position of filing another habeas for counsel's own IAC

    "We believe that there is an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal." (People v. Bailey (1992) 9 Cal.App.4th 1252.)

(b) consider how to get appointed, paid and covered by malpractice insurance call court administrator, contract firm, juvenile court clerk confer with criminal defense attorneys consult with buddy project attorney

Note: CCAP appointment to represent client on appeal and habeas does not include payment or malpractice insurance coverage for representing client in habeas proceeding in superior court; SDAP does cover

(c) consider associating in experienced local trial counsel

file motion to expand appointment in Court of Appeal to include associate counsel if associate counsel is going to appear in court

associate counsel's name should not appear on pleadings

associate counsel will be covered by panel's malpractice insurance but best to double check

associate counsel will be paid your compensation rate

consider how much you will be involved in trial preparation and how much you are willing to forego payment for duplicative efforts (i.e., trial prep, appearance at hearing)

explore with associate counsel: (1) any conflict of interest re IAC attorney; (2) any concerns associate counsel may have in representing client in a proceeding against IAC attorney

inform client of associate counsel

prepare and execute associate counsel agreement: be clear on divided responsibilities (i.e., associate counsel will conduct evidentiary hearing; appellate counsel will prepare pleadings, trial memo, etc.)

learn local rules and practices

(c) if you are not appointed to represent client in habeas proceedings, you are not responsible for filing traverse to respondent's "return"

problem: appellate counsel is more familiar with case and in better position to file traverse; consider co-counsel arrangement with appointed counsel

8. The return

(a) definition: the "return" is the respondent's statement of reasons that the court should not grant the relief requested by the petitioner. (Cal.Rules of Court, rule 4.550(3).)

Court of Appeal has found prima facie case of IAC; burden on Department to show cause why OSC should not issue

(b) return must include the following:

  1. factual allegations of return must respond to factual allegations in the habeas petition (People v. Duvall (1995) 9 Cal.4th 464, 476 [read this case to understand habeas pleadings]

    The requirement that the return allege facts responsive to the petition is critical, for the factual allegations in the return are either admitted or disputed in the traverse and this interplay frames the factual issues that the court must decide. (People v. Duvall (1995) 9 Cal.4th 464, 477, emphasis added.)

    a general denial is discouraged and fails to narrow factual issues (People v. Duvall (1995) 9 Cal.4th 464, 479-483)

    points and authorities may be an insufficient return; in People v. Duvall, portions of respondent's memorandum of points and authorities were sufficient to place the lower court on notice of those facts in dispute, but respondent failed to affirmatively state facts that contradicted the factual allegations in the petition for habeas corpus and thus failed to allege facts that would justify holding an evidentiary hearing (People v. Duvall (1995) 9 Cal.4th 464, 483.)

    Any material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding. (Cal. Rules of Court, rule 4.551(d).) Facts set forth in the return that are not disputed in the traverse are deemed true. (People v. Duvall (1995) 9 Cal.4th 464, 477.)

  2. return must be verified (Cal. Rules of Court, rule 4.551(d); Pen. Code sec. 1480, subd.(5).)

    return must comply with Penal Code section 1480 (Rule 4.551(d)

  3. Memorandum of Points and Authorities

  4. Exhibits and declarations refuting factual allegations in petition.

(c) Respondent must file return in 30 days (Cal. Rules of Court, rule 4.551(d).)

party or court for good cause stated in order may shorten or extend the time for doing any act under this rule (4.551(h)); this rule applies to superior court; in Darlice C., DCA ordered return to the order to show cause filed and served within 15 days of filing of the opinion

9. The traverse ("Denial") and exception to sufficiency of return

(a) the pleading

the "denial" is the petitioner's pleading in response to the return; the denial may be also referred to as the "traverse." (Cal.Rules of Court, rule 4.550(4).)

any material allegation of the return not denied is deemed admitted for purposes of the proceeding; any denial must comply with Penal Code section 1484 and must be served on the respondent (Cal. Rules of Court, rule 4.551(e).)

petitioner may deny or controvert any of the material facts or matters set forth in the return or except to sufficiency thereof (Pen. Code sec. 1484.)

factual allegations of return deemed true and relief denied unless petitioner in traverse denies truth of respondent's allegations and either realleges facts set out in the habeas petition, stipulates that petition is deemed a traverse or excepts to the sufficiency of the return (People v. Duvall (1995) 9 Cal.4th 464, 477.)

if respondent does not affirmatively contest the allegations in the habeas petition, petitioner may file exception to sufficiency of the return (People v. Duvall (1995) 9 Cal.4th 464, 479-483)

exception to sufficiency of the return: factual allegations in the return are so inadequate that the petitioner cannot answer them; analogous to a demurrer (People v. Duvall (1995) 9 Cal.4th 464, 477; Pen. Code sec. 1484.)

(b) Memorandum of Points and Authorities

if Court of Appeal has issued an OSC, decide what needs to be proven to avoid an evidentiary hearing and go straight to new.26 hearing (if termination of parental rights) or alternatively get to an evidentiary hearing

argument in traverse will define trial strategy

additional element to prove prejudice element for IAC at this point: minor's current status

under first of two-prong Strickland v. Washington test, the review addresses the attorney's conduct at the time the error was made (In re Arturo A. (1992) 8 Cal.App.4th 229, 239)

under second prong, prejudice showing requires that a different result would obtain were the section 366.26 judgment reversed and a new hearing ordered (In re Arturo A. (1992) 8 Cal.App.4th 229, 238.) The new hearing would entail not only the facts and evidence brought forth at the original hearing, but evidence as to the "current status" of the child. (Ibid.)

even though Court of Appeal has found prima facie IAC, traverse should address Strickland v. Washington standard (assuming constitutional right violated) and argue (1) attorney's substandard conduct at time of error; and (2) prejudice to client based on current status of children (using information in return declarations) because respondent has not established that the children's current status would prevent an outcome more favorable to petitioner

although OSC hearing is not a new .26 hearing, evidence pertinent to a new .26 hearing (minor's current status) will be considered

Note: although not a new .26, evidence about children's current status will impact on new .26 if one is granted and other parent and minors are not parties to the OSC proceeding

in traverse, point out issues raised in appeal that are not at issue in OSC on habeas (i.e, in Darlice C., issues on appeal but not habeas were conflict of minors' counsel and failure of juvenile court to consider minors' wishes)

(c) relief requested in traverse:

  1. "strike the return" if return pleading is defective;
  2. vacate judgment/grant new [.26] hearing; and,
  3. alternatively, grant evidentiary hearing on OSC

    An "evidentiary hearing" is a hearing held by the trial court to resolve contested factual issues. (Cal.Rules of Court, rule 4.550(5).)

    An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact. (Cal. Rules of Court, rule 4.551(f).)

(d) logistics of filing traverse

traverse is filed in the superior court therefore, court rules for superior court filings must be followed. (Cal. Rules of Court, rule 201; check local court rules; see sample traverse attached - need footer, pleading paper, recycled paper, two-hole punch, etc.)

Within 30 days after service and filing of a return, the petitioner may file a denial. (Cal. Rules of Court, rule 4.551(e).)
no rule 40(k) in state court

Darlice C. opinion: DCA ordered any traverse to the return filed within 10 days of the date of service of the return.

10. Serving the OSC

Court of Appeal issues the gold-sealed Order to Show Cause
not sure how much time to serve OSC

prepare Notice and Acknowledgment of Receipt of Order to Show Cause (Code of Civil Procedure section 415.30, 1073, 1096, 1105) (civil rules apply)

serve parties and real parties in interest (juvenile court judge, county counsel, appellate counsel for other parent or other parent if no counsel, minors' counsel, client)

once all parties return executed Acknowledgment of Receipt (in 20 days), prepare proof of service and file with original OSC in superior court (state court filing rules apply, see Cal. Rules of Court, rule 201)

11. The hearings

within 30 days after the filing traverse ("denial"), superior court must either grant or deny the relief sought by the petition or order an evidentiary hearing (Cal. Rules of Court, rule 4.551(f).)

Darlice C. opinion: juvenile court shall hear and determine the matter within 45 days of the date of opinion filing

court hearing on OSC

prepare trial memo (case law update)

not sure this applies: per CEB book on California Writ Practice, in most cases the hearing will consist of argument however parties are entitled to court trial when there is a factual conflict; parties must comply with procedure of California Rules of Court, rule 323(a) to be allowed oral testimony (evidence received at a law and motion hearing must be by declaration, affidavit, or request for judicial notice without testimony or cross-examination, except as allowed in the court's discretion for good cause shown)

if lose at hearing, request transcript and prepare another habeas in DCA and motion to expand appointment

if court grants evidentiary hearing:
petitioner must be produced at evidentiary hearing unless the court, for good cause, directs otherwise (Cal. Rules of Court, rule 4.551(f).)
query: if lose at hearing, appeal or habeas?

12. Compensation claim

keep detailed records of time spent on habeas; compensation for habeas petition per guidelines is 12 hours; [issues are evaluated the same as a regular brief]

if associate counsel, must use associate counsel form and cannot duplicate hours

 

Links to related samples & links:

 

Sample "State Bar" Letter to Trial Counsel

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Formal Opinion No. 1992-127, State Bar of California

Sample Application to Expand Appointment

Download as: File is in Microsoft Word Format File is in WordPerfect Format

California Professional Rules of Conduct, rule 5-210

(Member as Witness)

Sample Petition for Writ of Habeas Corpus

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Supplemental Briefing on Propriety of Habeas Petition

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Associate Counsel Agreement

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Sample Traverse

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Sample Traverse Coversheet

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Sample Exception to Sufficiency of Return & Traverse

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Sample Notice & Acknowledgment of Receipt

Download as: File is in Microsoft Word Format File is in WordPerfect Format

Notes on IAC Standard in Dependency Cases

Download as: File is in Microsoft Word Format File is in WordPerfect Format

 

Resources/Acknowledgments:

  • California Juvenile Dependency Practice, Vol 2. §10.109-116 Cal CEB 2002, Brad Bristow
  • California Writ Practice, CEB
  • CCAP Dependency & the Law/Mining for Issues (11/15/02 seminar)
  • CCAP 1/21/03 Legal Ethics for Appointed Appellate Lawyer
  • SDAP 5/03 spring appellate seminar
  • CCAP buddy project attorney Melissa Nappan

 

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