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Habeas Corpus Petitions in California State Courts

A petition for writ of habeas corpus can be one of the most important procedures available to criminal defendants in California.

A writ of habeas corpus is a court order that people charged with crimes can seek to fix an illegal restriction of their rights by the government.1 It is often sought by California inmates who want to reverse a legal decision (like a verdict, sentence, or court order).2 It can also be used by probationers and parolees.

A person who has been subject to criminal proceedings in California can seek a writ of habeas corpus by filing a petition for writ of habeas corpus.3 This is commonly called a “habeas petition.”

Habeas petitions are useful in cases were there are one or more potential grounds to overturn or modify a conviction but those grounds could not be raised in a direct appeal. They can also be used to challenge parole denials, the conditions of an inmate’s confinement, or a governmental agency’s decision.4

This article provides a general overview of petitions for writs of habeas corpus in California state court. If you have questions not addressed in this article, or if you are interested in information about federal habeas petitions, you should contact a qualified habeas attorney in your area today.

Overview of the Writ of Habeas Corpus

A petition for a writ of habeas corpus is a way of attacking the validity of a court order, judgment, or government decision.5 It argues that a person (the “petitioner”) has been unlawfully imprisoned or restrained in some way.6 The California Constitution guarantees that a person improperly deprived of his or her liberties has the right to petition for a writ of habeas corpus.7

Habeas petitions are popular because they can allow petitioners to present new evidence to prove that their constitutional rights have been violated.8 This differs from other post-convictions procedures, which often prohibit the introduction of new evidence.9 New evidence can be very important because court records of the previous criminal proceedings will often be silent on critical constitutional questions.10

Our justice system sometimes produces unfair results: innocent people can be convicted, fundamental rights are often denied, and new facts can be discovered that invalidate a conviction. The writ of habeas corpus is one potential way of addressing these injustices, and it serves as a final safeguard of our liberties.11

In short, the purpose of a petition for writ of habeas corpus is to ensure that justice was done.12

Issues That Can Be Raised

The Supreme Court of California has suggested that there are only two situations in which a writ of habeas corpus should be granted:

  • Where there was a fundamental jurisdictional problem with the challenged proceedings, or
  • Where a constitutional error has occurred that makes the petitioner’s imprisonment or restraint unlawful.13

These two categories might make the availability of the writ of habeas corpus seem narrow at first glance. In practice, however, California courts have greatly expanded the scope of habeas petitions to include a large number of important issues, even when jurisdictional or constitutional defects are not present.14

For example, a person can use habeas procedures to vindicate their rights when they have been subject to violations of statutes, administrative regulations, or when they can prove their innocence.15 Some of the more common situations where a habeas petition might be appropriate include:

  • The trial court’s judgment was invalid because the petitioner’s constitutional rights were denied, and that denial affected the outcome of the fact-finding process.16
  • The punishment imposed by the court was unauthorized by law.17
  • False evidence was introduced against the petitioner at trial, and that evidence affected the outcome.18
  • New evidence has been discovered that establishes actual innocence.19
  • The trial court had some jurisdiction to act, but a portion of its actions exceeded its jurisdiction.20
  • A change in the law occurred that could affect the judgment.21
  • One or more members of the jury engaged in misconduct.22
  • The prisoner is lawfully imprisoned, but the conditions of his or her imprisonment are inhumane.23

Importantly, this list is not exhaustive. There are many other situations where a writ of habeas corpus might be appropriate.

Types of Relief in Habeas Petitions

Defendant set free after filing a habeas corpus petition in California

A petition for writ of habeas corpus can seek many types of “remedies.” A remedy is the way that a legal right or entitlement is enforced by a court when a person establishes that they have been wronged.24

In the context of habeas petitions, if the court decides to grant some form of relief to the petitioner, it will normally order the remedy that “the justice of the case may require.”25 This standard is, of course, flexible and the appropriate type of remedy will vary from case-to-case. Examples of appropriate remedies can include:

  • Ordering that the prisoner be released from custody.26
  • Transferring a prisoner to a different facility.27
  • Ordering a new trial.28
  • Ordering that credits for time served be restored.29
  • Ordering that bail be set or reduced.30

The Supreme Court of California has distinguished the granting of a writ of habeas corpus from granting the actual remedy requested by the petitioner.31 It clarified that granting the writ serves primarily to launch the judicial inquiry into the issue raised by the petition.32

So, even if the court decides to grant the writ, the remedy sought by the petitioner is not always guaranteed. The party opposing it may still have an opportunity to argue in favor of the petitioner’s imprisonment (or other restraint).33 Or the court could find that a different remedy is more appropriate.

Limitations in California

Although the writ of habeas corpus is an important way of addressing injustices, it is not available in every case. A petitioner must sometimes meet certain requirements before moving forward with filing a petition for writ of habeas corpus. A few of the most important prerequisites are explained below.

Liberty Must Be Unlawfully Restrained

California’s habeas corpus statute, Penal Code section 1473, provides that the writ is available only when a person is “unlawfully imprisoned or restrained of his or her liberty.”34 This requirement is easy to meet in cases where a criminal defendant has been sentenced to prison or jail. Things get more complicated, however, when a person is not technically “in custody.”

The Supreme Court of California has held that a person does not have to be literally imprisoned or detained to be eligible for a writ of habeas corpus.35 They must, however, still be in “constructive custody.”36 A person is in constructive custody if he or she may later lose his or her liberty and could eventually be incarcerated.37

The kind of treatment that constitutes constructive custody has been the subject of some debate. In general, the critical factor will be whether a person’s physical liberty is directly at risk.38

The classic situations involving constructive custody are those where a person is:

  • On parole,39
  • On probation,40
  • On bail,41 or
  • Temporarily released on their own recognizance.42

Each of these are examples of substitutes for an actual custodial confinement that the trial court could have imposed,43 so it makes sense that the courts consider them to be the functional equivalent of being in actual custody. The question of constructive custody is more challenging when one of these situations are not present.

For example, the Supreme Court of California has suggested that habeas corpus is not available in cases where a punishment involves only a monetary fine and not imprisonment.44 At the same time, courts have held that when the sentence is for a fine or imprisonment, the petitioner is eligible for habeas corpus relief.45 These cases demonstrate that the meaning of “constructive custody” is not always clear cut.

Importantly, once a person has been released and is no longer subject to parole or probation, he or she is not considered to be in “constructive custody” and any habeas corpus remedy is foreclosed.46 A person must be currently subject to some restraint of his or her liberty that is not shared by the public generally before they may file a habeas petition.47

As such, habeas corpus cannot be used to challenge old convictions if the sentence has been fully served.48 This is true even when an old conviction causes new problems for a person. As explained by the Supreme Court of California: “[C]ollateral consequences of a criminal conviction—even those that can later form the basis of a new criminal conviction—do not of themselves constitute constructive custody.”49

Importantly, if a person is in custody or constructive custody at the time they file the habeas petition, the custody requirement is met.50 A petitioner can continue their previously-filed habeas petition even after they are released from all types of custody.51

Finally, although it’s rarely an issue, courts have held that a person’s imprisonment must be involuntary.52 A person cannot maneuver themselves into a position where they are in custody solely for the purpose of bringing a petition for writ of habeas corpus.53

Sometimes a Direct Appeal Should be Pursued Instead

A petition for writ of habeas corpus is, as the name implies, a type of “writ” petition. A writ is a formal order that directs a court or other government entity to take a certain action.54 A writ of habeas corpus, for example, orders that the person with custody over the petitioner55 bring the petitioner before the court.56

Writ petitions are a type of “collateral attack” on a court judgment.57 A collateral attack is an attempt to overturn the outcome of an earlier court case by initiating a new case that is separate and apart from the original one.58 In this way, a habeas petition is similar to a civil lawsuit that attacks a court judgment or the actions of a government entity.59

Importantly, writ petitions can often be used to attack a judgment through the use of evidence that was not presented in the original court case.60 This means that courts will sometimes hold an evidentiary hearing to determine if the petitioner’s factual assertions are correct.61

Writ petitions are different from a procedure called a “direct appeal.”62 A direct appeal asks a higher court to modify or reverse a lower court’s decision.63 A direct appeal is part of the same proceeding as the original judgment, and its challenge is limited to the record of events that happened in the trial court.64 Unlike a writ petition, new evidence is generally not permitted in a direct appeal.65

These distinctions are important because a petition for writ of habeas corpus normally cannot be used as a substitute for direct appeal.66 Direct appeals and writ petitions serve important but distinct functions. Some issues should be raised in a direct appeal, other issues should be raised in a writ petition, and some issues should be raised in both.

If Possible, Issues Must Be Raised on Direct Appeal

In many cases, if an argument could have been, but was not, raised in a timely direct appeal a court will reject it when raised in a habeas petition.67 Likewise, if a legal claim was raised and rejected on direct appeal, it ordinarily cannot be re-raised in a habeas petition.68

These rules, however, have been described by courts as discretionary policies which may be overlooked where “special circumstances” exist.69 So, if a “special circumstance” applies, a person can still bring a petition for writ of habeas corpus even though an appeal was probably the more appropriate procedure.

Exceptions

Some of the following are examples of situations that constitute “special circumstances” for which the writ of habeas corpus is available even though the issue could have been raised on a direct appeal:

  • The appeal will take too long. When a claim is appropriate for direct appeal, but the petitioner will have served his or her entire sentence before the matter is decided by the appellate court, a habeas petition can be used.70 This is a special circumstance because the direct appeal will have failed to provide an adequate legal remedy.71 In this kind of situation, habeas corpus proceedings can allow for a more rapid adjudication of the claim.72
  • There was a fundamental constitutional error. Where a petition presents an alleged constitutional error that is clear, fundamental, and it strikes at the heart of the trial process, the petitioner may pursue a habeas petition even though the matter could have been resolved in a direct appeal.73
  • There was a change of law. The law is continually evolving. When, after a person’s appeal, there has been a change in the law in that person’s favor, courts can allow a new habeas petition to be filed.74 This might be true even if the issue had been previously rejected or not addressed on direct appeal.75
  • There was a fundamental jurisdictional error. Fundamental jurisdictional defects can be addressed in a habeas petition, even after an appeal has concluded.76 A judgment rendered by a court lacking jurisdiction may be challenged at any time, and habeas corpus is one of the ways to do so.77 The same principle applies when a court has jurisdiction but performs an act that exceeds its jurisdiction.78
  • An appeal is otherwise inadequate. When an appeal is available, but it is, for some reason, an inadequate remedy, a petition for writ of habeas corpus can be appropriate.79 This often happens in cases involving ineffective assistance of counsel claims. Courts have held that ineffective assistance of counsel claims should generally be pursued through habeas corpus.80 This is because a direct appeal is an inadequate method of examining the facts necessary to decide whether the trial attorney acted reasonably.81

Despite these special circumstances, if arguments are available on a direct appeal, it is normally a good practice to pursue them through that route. It is sometimes possible to pursue a direct appeal and habeas corpus at the same time by consolidating the habeas petition with the case pending in the appellate court.82

When Possible, Administrative Remedies Must Be Exhausted

In some types of challenges, there are procedures that a person must follow before they can file a petition for writ of habeas corpus. This process is called “exhausting administrative remedies.”83 In essence, if a government agency has a grievance process that allows petitioners to bring specific types of challenges, the petitioner must pursue that process before seeking a petition for writ of habeas corpus.84

Exhaustion issues arise most often with inmates challenging the conditions of their confinement.85 As a general matter, inmates have many constitutional rights, even when they are in prison.86 For example, inmates are entitled to be free from cruel or unusual punishment,87 they have a right to practice their religion,88 and a right to access the courts.89 Inmates are also granted rights by statute and regulation.90

If these rights are violated by prisons or prison officials, inmates may challenge the conditions of their confinement through a petition for writ of habeas corpus.91 However, because administrative remedies must be exhausted, a successful challenge on these grounds can be burdensome; California’s somewhat complex administrative appeals process must be followed first.

The California Department of Corrections and Rehabilitation (called the “CDCR”) has adopted regulations that allow inmates and parolees to challenge certain departmental policies, decisions, actions, conditions, or omissions.92 These regulations provide for an appeals process that consists of multiple levels of review.93 California courts have held that inmates must go through all levels of review before they can bring their challenge to court.94

Jumping through these kinds of administrative hoops is not always easy, but sometimes necessary. To make matters even more difficult, inmates are often faced with short deadlines to comply with those administrative regulations. Inmates will normally have less than 30 days to file their administrative appeal, beginning from the date the problem occurred.95

Courts have, however, suggested that inmates do not have to exhaust their administrative remedies where: doing so would be futile,96 the delay would cause irreparable injury,97 and where the remedy offered by the procedures would be inadequate.98 These exceptional circumstances are somewhat rare and can be difficult to establish.

Importantly, the requirement that habeas petitioners first exhaust their administrative remedies is limited in scope. Not all habeas petitioners need to exhaust. Prisoners challenging their criminal convictions or sentences, for example, do not need to exhaust their administrative remedies.

The critical question for prospective habeas petitioners is whether a process exists through a government agency other than the courts that can provide them with the relief they’re seeking.

Deadline to File the Petition

Deadline to File a a Petition for Writ of Habeas Corpus

In California, there is no formal time limit (or statute of limitations) to file a petition for writ of habeas corpus.99 However, courts will reject a petition if there has been an unjustified delay in filing it.100 California courts have adopted the requirement that a petition be filed “reasonably promptly.”101

The question of whether a petition is reasonably prompt will depend on the circumstances of each specific case. In general, the petition should be filed “as promptly as the circumstances allow.”102 Courts measure the timeliness of a habeas petition by looking at the time when the petitioner (or his/her attorney) knew, or should have known, of the facts and legal arguments supporting the petition.103

Justifying a Delay

If there has been a substantial delay, the petitioner will be required to explain the circumstances that justify the delay.104 California courts have held that a delayed petition will be allowed only if: (1) there is good cause for the delay, or (2) the claim falls within an exception to the normal bar of untimeliness.105

With regard to the second showing, there are four exceptions to the bar of untimeliness:

  • Fundamental Error. The error discussed in the habeas petition led to a trial that was so fundamentally unfair that, absent the error, no reasonable judge or jury would have convicted the petitioner.
  • Actual Innocence. The petitioner is actually innocent of the crime or crimes of which the petitioner was convicted.
  • Misleading Profile in a Capital Case. The death penalty was imposed by a sentencing authority which had a grossly misleading profile of the petitioner before it, and, in the absence of that misleading profile, no reasonable judge or jury would have imposed a sentence of death.
  • Invalid Statute. The petitioner was convicted or sentenced under an invalid statute.106

In addition to these exceptional circumstances, challenges to parole denials are probably not subject to the normal deadlines associated with habeas corpus petitions.107

Impact on Federal Habeas Petitions

Importantly, if a person wishes to file a petition for writ of habeas corpus in federal court, there are strict deadlines to follow.108 The deadlines usually begin running at the time the petitioner’s direct appeal in the state court has concluded.109

These deadlines are important because, before a person can file a federal habeas petition, the contested issue must normally be raised in state court.110 If the issue was not raised first in the petitioner’s direct appeal, the petitioner may have to quickly raise it in a state habeas petition. So, it can be very important to file the state habeas petition as early as possible so the issue can then be timely raised in a federal habeas petition.

The Partial Right to an Attorney in Habeas Proceedings

Lawyer reading a book

As discussed above, the California Constitution guarantees that a person improperly deprived of his or her liberty has the right to file a habeas petition.111 Despite this right, habeas petitioners have no constitutional right to have an attorney to assist them with their petition.112

This might seem counterintuitive because criminal defendants normally have a right to an attorney.113 Habeas corpus proceedings, however, are not technically part of the underlying criminal case.114 Rather, they are often considered an independent civil proceeding, in the same way that a lawsuit would be.115 So, habeas petitioners do not always have all the same procedural rights that a criminal defendant would have.

Even though there is no constitutional right to an attorney during state habeas proceedings, the California Rules of Court require courts to appoint an attorney for any unrepresented petitioner who desires to have an attorney, but cannot afford one.116 Unfortunately, this requirement only comes into play after the habeas petition has been filed and the court determines that the facts alleged in the petition, if true, would entitle the petitioner to some form of relief.117

In other words, there is no right to an attorney in preparing the initial petition for writ of habeas corpus.118 People interested in filing a habeas petition may choose to privately retain their own attorney or prepare the petition on their own. If their petition states facts that would entitle them to relief, California courts will later provide them with the option of an appointed attorney.119

Of note, capital cases are treated differently. A capital case is one in which a person has been sentenced to death, or could be sentenced to death.120 The State of California has adopted a statutory right for the appointment of one or more attorneys to represent indigent prisoners in capital cases during any state court proceedings, even after the appeal is over.121

Additionally, there are some situations where a person’s appointed attorney in a direct appeal might choose to file a habeas petition on their client’s behalf alongside the briefs of the direct appeal. An appointed appellate attorney can also seek to expand the scope of their appointment to include the filing of a habeas petition in the trial court. The choice of whether to pursue these avenues, however, is generally left to the discretion of the person’s appointed appellate attorney and is not a matter of right—in non-capital cases, at least.122

Selecting the Right California Court

In California, there are three basic levels of courts: (1) the superior court, (2) the court of appeal, and (3) the state supreme court.123 A person intending to file a petition for writ of habeas corpus will have to decide the level of court and the geographic location in which they will file their petition.

Court Structure in California

Superior Court vs. Higher Courts

The superior court is California’s lowest level of court, and it has jurisdiction over all criminal and civil trials.124 The courts of appeal are intermediate courts of review; meaning, they review the decisions of the superior courts, but are a level below the Supreme Court of California.125 The Supreme Court of California is the state’s highest court, and it reviews lower state court decisions.126

Each of these three levels of courts have original jurisdiction in petitions for writs of habeas corpus.127 The phrase “original jurisdiction” means that the court has the power to entertain cases in the first instance.128 This is distinguishable from “appellate jurisdiction,” which is the power to review a lower court’s decision.129 So, a person can file their initial habeas petition at any level of court, and the court will have jurisdiction to hear it.

Nevertheless, appellate courts have held that they have discretion to reject habeas petitions if the petitioner has not first filed the petition in the superior court.130 So, unless there is a good reason not to do so, it is normally preferable to file the initial petition for writ of habeas corpus in the superior court.

Choosing a Superior Court

All superior courts in California have jurisdiction to hear any petition for writ of habeas corpus.131 The Supreme Court of California has held, however, that superior courts should sometimes transfer the case to a different county if there is a more appropriate one available.132

To avoid the possibility that the case might be involuntarily transferred to another county, many petitioners follow a few simple rules:

  • If the habeas petition challenges a particular judgment or sentence, the petition should be filed in the court that rendered judgment.133
  • If the habeas petition challenges the conditions of an inmate’s confinement, the petition should be filed in the superior court of the county where the inmate is confined.134
  • If the habeas petition challenges a denial of parole, the petition should be filed in the superior court in which the underlying judgment was rendered.135

Choosing an Appellate District

California’s courts of appeal are divided into six distinct appellate districts.136 The jurisdiction of each district covers the superior courts of several counties.

California's Appellate Court Jurisdictions

All courts of appeal in California have original jurisdiction to hear any petition for writ of habeas corpus.137 However, a court of appeal will sometimes deny a habeas petition if there are courts better-suited to hear the matter.

A court of appeal may deny a petition that is based primarily on facts that occurred outside its appellate district.138 This normally happens where the petition challenges the validity of judgments or orders of trial courts located outside the district; or where it challenges conditions of an inmates confinement outside the district.139

Likewise, the court of appeal may deny a petition that challenges a parole-related issue if it was not first adjudicated by the trial court that rendered the underlying judgment.140

So, even though jurisdiction might exist, courts sometimes reject habeas petitions if they would be better filed elsewhere. In many cases, the appellate court will state the reason for the denial, and it will identify the appropriate court in which to file the petition.141

The Habeas Petition Process

Habeas procedures are somewhat complicated. The exact steps a petitioner will need to follow can depend on a number of factors, including the issues being argued, the decision of the judge at each stage, and the court where the petition is brought. In general, the process in the superior court is as follows:

Preparing the Petition

If the petitioner is not represented by an attorney, the habeas petition should be prepared using Judicial Council Form MC-275,—unless the petitioner can show good cause that would exempt them from doing so.142 A petition submitted by an attorney does not need to be on the Judicial Council form.143 Even then, however, it must include all of the pertinent information listed in the Judicial Council form and must comply with the requirements of Penal Code section 1474.144 So it might still be a good idea to use the Judicial Council form, even if an exemption is available.

Whatever form the petition takes, it must state, in detail, the factual basis that would justify the relief being sought.145 At a minimum, the petition must:

  • Identify the petitioner.146
  • Explain how the petitioner is imprisoned, restrained, or otherwise being harmed.147
  • Identify the location where the petitioner is being held, imprisoned, or restrained.148 Or, if the petitioner is released, describe the circumstances of the release and, if necessary, explain how the release meets the “constructive custody” requirement of habeas corpus.149
  • Name the officer or person by whom the petitioner is being restrained.150 This party is the responding party. It is usually the warden of the prison or jail where the inmate is being held. It can also be the Secretary of the California Department of Corrections and Rehabilitation.151 In the case of probation, the responding party is often the chief probation officer of the county in which the petitioner is on probation.
  • Identify the proceedings or court order that led to the imprisonment, restraint, or harm.
  • Allege that the imprisonment, restraint, or other harm is unlawful.152
  • Specify the facts on which the petitioner bases his or her claim that the imprisonment, restraint, or other harm is unlawful.153
  • State whether any other prior petitions have been filed in this matter.154 If a prior petition has been filed, the petition should explain why a successive petition should be allowed.155
  • Attach copies of any reasonably available documentary evidence supporting the claim, including relevant portions of trial transcripts and affidavits or declarations.156
  • Be “verified” by the oath or affirmation of the party making the application.157 A petition is verified when a person signs a declaration under the penalty of perjury that the allegations made in the petition are true.158

The petitioner will be required to bear a heavy burden to state sufficient grounds for relief in his or her initial petition.159 So, the allegations in the petition should not be mere conclusions; they should carefully and fully explain the basis for the allegations.160

The petition may include a memorandum of points and authorities, which is a legal brief that provides a detailed explanation or argument of the legal theory on which the petition rests.161

Filing the Petition

The filing of a petition for writ of habeas corpus initiates the proceedings.162 It is usually prepared and filed by the petitioner or the petitioner’s attorney.163

The Court’s Initial Review

After filing, the court will have 60 days to rule on the petition.164 If the court does not rule on it within that time, the petitioner may file a document called a “notice and request for ruling.”165 The notice and request for ruling is usually a one-page document that can be easily completed on Judicial Council Form CR-175. If the notice and request for ruling is complete and accurate, the matter will then be placed on the court’s calendar and scheduled for a decision within 30 days.166

In general, the matter will be assigned to a superior court judge other than the judge or magistrate who originally made the ruling or order that is being challenged by the petition for writ of habeas corpus.167 This policy can help avoid problems of judicial bias.

In ruling on the habeas petition, the court will determine whether the petition alleges facts that, if true, would entitle the petitioner to relief.168 For these purposes, the court assumes that the facts alleged in the petition are accurate.169 If a petition alleges sufficient facts, it is said to have made a prima facie case for relief.170

The court will have to choose between three options:

  • Issue an Order to Show Cause. If the court determines that the petitioner has made a prima facie case for relief in his or her petition, it must issue an order to show cause.171 The order to show cause forces the government to try to justify the petitioner’s imprisonment or other restraint on the petitioner’s liberty.172
  • Request an Informal Response. In some situations, the court may be uncertain about whether the petition states a prima facie case. To assist the court in determining the petition’s sufficiency, the court may request an informal response from the party having custody of the petitioner (or certain other parties).173 That party will have 15 days to serve and file its response.174 The petitioner will then have 15 days to file a reply.175
  • Summarily Deny the Petition. If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright.176

If the court issues an order to show cause, it must appoint an attorney for any unrepresented petitioner who desires but cannot afford one.177

If the court chooses to request an informal response, it will then have 45 days after the informal response filed to decide the petition.178 At that point, the court will have only two options, either: issue an order to show cause or deny the petition.179

If the court chooses to deny the petition, it must provide a brief statement of the reasons for the denial.180

State Habeas Filing Diagram

The Return (the Government’s Formal Response)

If the trial court issues an order to show cause, the responding party will have 30 days to file a document called a “return.”181 The responding party is the government, which is usually represented by the California Attorney General.

The return is a legal brief in which the government will try to justify the confinement or otherwise refute the allegations in the petition.182 The return must be responsive to the allegations of the petition, and it must attempt to allege facts that, if true, would establish the legality of the petitioner’s custody.183 The return may provide documentary evidence, affidavits, or other materials in support of its arguments.184

Importantly, the return must dispute any material facts alleged in the habeas petition. Otherwise, they will be deemed to be admitted.185 The return may not contain merely a general denial.186 Rather, it usually must specifically allege facts demonstrating the lawfulness of the government’s actions.187

If the return effectively admits the allegations in the petition which, if true, justify the relief sought, the court may grant the relief sought by the petitioner without any further hearing on the other factual issues raised in the briefs.188

The “Denial” or “Traverse”

After the responding party has served and filed its return, the petitioner will have an opportunity to file a document called a “denial.”189 This document was traditionally called a “traverse,” a term that is still used by many attorneys and judges.190

The denial is a legal brief that serves as an opportunity for the petitioner to respond to the claims and arguments made in the government’s return.191 The denial must reassert the factual allegations of the original petition, and it must deny the facts alleged in the return to the extent the petitioner disagrees with them.192 If the petitioner fails to deny any such disputed facts, they will be deemed true by the court and the petition could be denied.193

Instead of restating factual assertions or arguments, the petitioner may choose to either: (1) reach an agreement with the government that the original petition should be deemed to be the denial,194 or (2) incorporate the original petition by reference.195 Incorporating a document by reference is the act of making a previous document a part of the current document by clearly identifying the previous document and expressing the intent that it be incorporated into the new document.196

The traverse may allege additional facts in support of the claim raised in the original petition.197 It may not, however, attempt to introduce new claims or different factual bases for existing claims.198

Evidentiary Hearing and Decision

After the denial is filed, or after the time to file it has expired, the court may choose to hold an evidentiary hearing.199 An evidentiary hearing is appropriate when an important question hinges on the resolution of disputed facts.200 At the evidentiary hearing, the petitioner will bear the burden of proving any facts necessary to establish that the petition should be granted.201

If no evidentiary hearing is ordered, the court will have 30 days from the time that the denial was filed (or could have been filed, if no denial was actually filed) to grant or deny the relief sought by the petition.202

If the court ultimately denies the petition, it must provide a brief statement of the reasons for the denial.203 If, on the other hand, the court agrees with the petitioner, it will select the relief that “the justice of the case may require” and issue an order granting the petition.204

Odds of Success

There is no way of accurately predicting how likely an argument is to succeed. As with any legal challenge, a criminal defendant’s chances of success will largely depend on the strength of their arguments. Cynical lawyers would probably also note that success can often hinge on the temperament of the judge or judges hearing the petition.

That being said, there are some statistics that shed light on these kinds of petitions. Some commentators have suggested that as many as 97% of state habeas petitions are denied without a hearing or explanation.205 California’s court-kept statistics suggest that the number is actually closer to about 90%—which might be a little better, but is still pretty grim for prospective petitioners.206

Of those that receive a hearing, a significant percentage still go on to lose. So, the unfortunate reality is that most habeas petitioners face an uphill battle in prosecuting their petitions. Some of this difficulty, however, might be accounted for by the fact that the overwhelming majority of habeas petitions are filed without the assistance of an attorney.207

Appealing the Denial of a Habeas Petition

No right to appeal the denial of a habeas petition

One weird fact about habeas petitions in California is that the denial of a habeas petition in the superior court cannot be appealed.208 If a habeas petitioner loses in the superior court and they wish to appeal, they must file a new petition with the court of appeal.209 For practical purposes, this new habeas petition serves as an appeal, but it is technically a completely new and separate proceeding.

If the court of appeal denies the new habeas petition, the petitioner may either: (1) file a petition for review in the Supreme Court of California;210 or (2) file another new habeas petition in the Supreme Court of California.211 The supreme court has suggested that it strongly prefers the filing of a petition for review over the filing of a new habeas petition.212

In somewhat of a double standard, California allows a habeas petition to be appealed if any part of the petition is granted.213 This is true even when the superior court is the court that granted the petition.214 Although this rule might seem unfair, the Supreme Court of California has held that it is constitutionally permissible.215

Final Thoughts

Habeas corpus is perhaps one of the most important legal procedures available to inmates, probationers, and parolees. Unfortunately, people that wish to file a petition for writ of habeas corpus face an uphill battle. Most of the procedural rules and legal standards presumptively favor upholding the conviction or the government’s actions.

Given the important interests at stake, the best decision a potential petitioner can make is choosing the right lawyer.


  1. Gomez v. Superior Court (2012) 54 Cal.4th 293, 301.

    Footnote 1
  2. Pen. Code, § 1473; In re Barnett (2003) 31 Cal.4th 466, 478, fn. 10 [“[H]abeas corpus proceedings . . . are properly viewed as civil actions designed to overturn presumptively valid criminal judgments and not as part of the criminal process itself.”]; In re Lira (2014) 58 Cal.4th 573, 577 [noting that a court may grant relief on a person’s habeas corpus petition and overturn an earlier decision by the governor]; People v. Villa (2009) 45 Cal.4th 1063, 1068.

    Footnote 2
  3. Pen. Code, § 1473, subd. (a).

    Footnote 3
  4. E.g., In re Hunter (2012) 205 Cal.App.4th 1529; People v. Villa, supra, 45 Cal.4th 1063, 1069.

    Footnote 4
  5. In re Reno (2012) 55 Cal.4th 428, 452 [a petitioner may mount an “attack on a final criminal judgment by way of habeas corpus”].

    Footnote 5
  6. In re Catalano (1981) 29 Cal.3d 1, 8 [“Although the chief use of habeas corpus has been to obtain the release of persons held in actual, physical custody, ‘[history], usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.'”].

    Footnote 6
  7. People v. Duvall (1995) 9 Cal.4th 464, 474; Cal. Const., art. I, § 11 [“Habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion.”].

    Footnote 7
  8. In re Carmen (1957) 48 Cal.2d 851, 868–869 [“The courts of both the United States and California have declared that the remedy of habeas corpus permits an examination not only of the actual evidence introduced at petitioner’s trial but of any necessary additional evidence bearing upon the infringement of petitioner’s constitutional rights.”].

    Footnote 8
  9. Redsted v. Weiss (1945) 71 Cal.App.2d 660, 666 [“Applications [in direct appeals] to produce additional evidence . . . will be granted only in exceptional cases.”].

    Footnote 9
  10. E.g., People v. Gray (2005) 37 Cal.4th 168, 207 [habeas corpus is more appropriate than a direct appeal in ineffective assistance of counsel claims when the record is silent on the reason for defense counsel’s actions].

    Footnote 10
  11. Bowen v. Johnston (1939) 306 U.S. 19, 26 [“It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.”].

    Footnote 11
  12. In re Application of Jacinto (1935) 8 Cal.App.2d 275, 276 [“The purpose of a writ of habeas corpus is to test the validity of the process upon which a person is restrained and the jurisdiction of the court issuing such process.”].

    Footnote 12
  13. In re Sands (1977) 18 Cal.3d 851, 856–857 [“Since it is a collateral attack on a judgment, habeas corpus does not lie unless the asserted defect in the proceedings constitutes a fundamental jurisdictional or constitutional error.”].

    Footnote 13
  14. Gomez v. Superior Court, supra, (2012) 54 Cal.4th 293, 309, fn. 10.

    Footnote 14
  15. Id. at p. 309, fn. 10; In re Richards (2012) 55 Cal.4th 948, 959–960 [“[H]abeas corpus relief is appropriate if the petitioner presents new evidence that unerringly establishes innocence.”].

    Footnote 15
  16. In re Azzarella (1989) 207 Cal.App.3d 1240, 1246.

    Footnote 16
  17. Id. at p. 1246; Pen. Code, § 1487, subd. (6).

    Footnote 17
  18. Pen. Code, § 1473, subd. (b)(1); see, e.g., In re Wright (1978) 78 Cal.App.3d 788, 815–816 [discussing false evidence].

    Footnote 18
  19. In re Richards, supra, 55 Cal.4th 948, 959–960.

    Footnote 19
  20. In re Zerbe (1964) 60 Cal.2d 666, 667–668; Pen. Code, § 1487, subd. (1).

    Footnote 20
  21. In re Harris (1993) 5 Cal.4th 813, 841.

    Footnote 21
  22. In re Hitchings (1993) 6 Cal.4th 97.

    Footnote 22
  23. People v. Villa, supra, 45 Cal.4th 1063, 1069 [“A petitioner in custody can also challenge the conditions of confinement, a challenge related not to the petitioner’s underlying conviction but instead to his or her actual confinement.”]; In re Riddle (1962) 57 Cal.2d 848, 852 [“To be entitled to [habeas] relief [a prisoner] must allege and prove that cruel, inhuman, or excessive punishment was inflicted upon him in violation of his fundamental and basic rights.”]; Pen. Code, § 2600, subd. (a).

    Footnote 23
  24. The Law Dictionary, Remedy, available at https://archive.is/uRTjU (last accessed Nov. 22, 2015).

    Footnote 24
  25. Pen. Code, § 1484; In re Crow (1971) 4 Cal.3d 613, 619.

    Footnote 25
  26. Pen. Code, § 1485.

    Footnote 26
  27. In re Crow, supra, 4 Cal.3d 613, 619 [“[The court’s jurisdiction] included the power to transfer defendant from the custody of the warden to the custody of the Superior Court of Los Angeles County.”]; Pen. Code, § 1493.

    Footnote 27
  28. See, e.g., In re James (1952) 38 Cal.2d 302, 313–314.

    Footnote 28
  29. E.g., In re Fratus (2012) 204 Cal.App.4th 1339, 1352.

    Footnote 29
  30. People v. Standish (2006) 38 Cal.4th 858, 884 [“[I]t is settled that defendants may correct error in the setting of bail by seeking a writ of habeas corpus or other extraordinary writ ordering reconsideration of custody status or release.”].

    Footnote 30
  31. People v. Romero (1994) 8 Cal.4th 728, 738 [“The role that the writ of habeas corpus plays is largely procedural. It ‘does not decide the issues and cannot itself require the final release of the petitioner.’ (People v. Getty (1975) 50 Cal.App.3d 101, 110.)”].

    Footnote 31
  32. Id. at p. 738.

    Footnote 32
  33. Id. at p. 738.

    Footnote 33
  34. Pen. Code, § 1473, subd. (a).

    Footnote 34
  35. In re Petersen (1958) 51 Cal.2d 177, 181 [“The availability of the writ . . . does not depend on actual detention in prison.”].

    Footnote 35
  36. In re Wessley W. (1981) 125 Cal.App.3d 240, 246.

    Footnote 36
  37. Id. at p. 246

    Footnote 37
  38. In re Wessley W., supra, 125 Cal.App.3d 240, 246 [“[A] person is in custody constructively if he may later lose his liberty and be eventually incarcerated.”]; In re Rider (1920) 50 Cal.App. 797, 802 [a reasonable apprehension of physical force is enough to merit a habeas petition].

    Footnote 38
  39. In re Jones (1962) 57 Cal.2d 860, 861, fn. 1.

    Footnote 39
  40. In re Osslo (1958) 51 Cal.2d 371, 376.

    Footnote 40
  41. In re Petersen, supra, 51 Cal.2d 177, 181–182.

    Footnote 41
  42. In re Smiley (1967) 66 Cal.2d 606, 614.

    Footnote 42
  43. People v. Villa, supra, 45 Cal.4th 1063, 1074.

    Footnote 43
  44. In re Coleman (1974) 12 Cal.3d 568, 572, fn. 2 [“A writ of habeas corpus . . . will not lie to review an order of contempt which is punished only by fine . . . .”].

    Footnote 44
  45. In re Catalano, supra, 29 Cal.3d 1, 7–9.

    Footnote 45
  46. People v. Kim (2009) 45 Cal.4th 1078, 1108 [“[People] who have completely served their sentence and also completed their probation or parole period, may not challenge their underlying conviction in a petition for a writ of habeas corpus because they are in neither actual nor constructive custody for state habeas corpus purposes.”].

    Footnote 46
  47. In re Smiley, supra, 66 Cal.2d 606, 613.

    Footnote 47
  48. In re Stier (2007) 152 Cal.App.4th 63, 81–83.

    Footnote 48
  49. People v. Villa, supra, 45 Cal.4th 1063, 1070; see also In re Stier, supra, 152 Cal.App.4th 63, 82–83 [a former sex offender is not in “constructive custody” merely because they have an ongoing duty to register as a convicted sex offender].

    Footnote 49
  50. In re King (1970) 3 Cal.3d 226, 229–230, fn. 2 [“Because the burdens of a felony conviction are substantial and have a continuing impact upon the convicted defendant even after he has served his term, the discharge of petitioner during the pendency of this proceeding does not render his petition moot.”].

    Footnote 50
  51. Ibid.

    Footnote 51
  52. In re Ancheta (1947) 80 Cal.App.2d 255, 255.

    Footnote 52
  53. In re Reno, supra, 55 Cal.4th 428, 453–454; Matter of Ford (1911) 160 Cal. 334, 342 [“[V]oluntary imprisonment, had for the sole purpose of making a case on habeas corpus, was contrary to the spirit, purpose, and object of the writ and was an abuse of it.”].

    Footnote 53
  54. Gomez v. Superior Court, supra, 54 Cal.4th 293, 301–302; Code Civ. Proc., § 1085.

    Footnote 54
  55. E.g., a prison warden, a probation officer, or a jail official.

    Footnote 55
  56. Pen. Code, § 1477; People v. Romero, supra, 8 Cal.4th 728, 738 [“[T]he writ commands the person having custody of the petitioner to bring the petitioner ‘before the court or judge before whom the writ is returnable’ [Citation], except under specified conditions . . . .”].

    Footnote 56
  57. People v. Ault (2004) 33 Cal.4th 1250, 1268 [“[H]abeas corpus is a separate, collateral proceeding that attacks a presumptively valid judgment.”].

    Footnote 57
  58. Ibid.

    Footnote 58
  59. In re Scott (2003) 29 Cal.4th 783, 815 [state capital habeas corpus proceeding in which a referee was appointed to take evidence and make findings on an inmate’s claims of ineffective assistance of counsel was civil in nature].

    Footnote 59
  60. People v. Salcido (2008) 44 Cal.4th 93, 172; In re Branch (1969) 70 Cal.2d 200, 213 [“A writ of habeas corpus may be granted on the basis of ‘new evidence that undermines the prosecution’s entire case.'”].

    Footnote 60
  61. Cal. Rules of Court, rule 4.551, subd. (f).

    Footnote 61
  62. See Pen. Code, § 1237.

    Footnote 62
  63. Sanborn v. Pacific Mut. Life Ins. Co. (1940) 42 Cal.App.2d 99, 105 [“An appeal is not a trial but simply a method given litigants of rectifying errors, legal or factual, that may have occurred at a preceding hearing generally referred to as a trial.”].

    Footnote 63
  64. People v. Szeto (1981) 29 Cal.3d 20, 35.

    Footnote 64
  65. People v. Peevy (1998) 17 Cal.4th 1184, 1207–1208.

    Footnote 65
  66. In re Crow (1971) 4 Cal.3d 613, 622, fn. 9; In re Ronald E. (1977) 19 Cal.3d 315, 321–322 [rejecting habeas petition where petitioner failed to explain why he did not timely appeal an appealable issue]; In re Byrnes (1945) 26 Cal.2d 824, 827, superseded on other grounds as stated in People v. Lyons (2009) 178 Cal.App.4th 1355, 1360.

    Footnote 66
  67. In re Dixon (1953) 41 Cal.2d 756, 759 [“The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. “]. This is sometimes referred to as the “Dixon rule,” after In re Dixon, supra, 41 Cal.2d 756. (In re Harris, supra, 5 Cal.4th 813, 825.)

    Footnote 67
  68. In re Reno, supra, 55 Cal.4th 428, 476 [“[L]egal claims that have previously been raised and rejected on direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a writ of habeas corpus.”]. This is sometimes referred to as the “Waltreus rule,” after In re Waltreus (1965) 62 Cal.2d 218. (In re Harris, supra, 5 Cal.4th 813, 825.)

    Footnote 68
  69. In re Coughlin (1976) 16 Cal.3d 52, 55 [“Although habeas corpus ordinarily cannot serve as a second appeal, that general rule is primarily a discretionary policy which may be overlooked where ‘special circumstances’ are deemed to exist.”]; In re Black (1967) 66 Cal.2d 881, 887 [“[W]e made clear in Dixon and in other cases that although a remedy by appeal or other direct attack might have been available, the writ of habeas corpus nevertheless will lie where special circumstances are presented.”].

    Footnote 69
  70. In re Newbern (1960) 53 Cal.2d 786, 789, superseded by statute on other grounds as noted in In re Koehne (1963) 59 Cal.2d 646, 648.

    Footnote 70
  71. In re Rodden (2010) 186 Cal.App.4th 24, 31.

    Footnote 71
  72. Id.

    Footnote 72
  73. In re Harris, supra, 5 Cal.4th 813, 834; see also In re Clark (1993) 5 Cal.4th 750 [discussing fundamental miscarriages of justice].

    Footnote 73
  74. In re Coley (2012) 55 Cal.4th 524, 536–537.

    Footnote 74
  75. Id.; see also In re Gomez (2009) 45 Cal.4th 650.

    Footnote 75
  76. In re Winchester (1960) 53 Cal.2d 528, 531–532 [“Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal.”], superseded on other grounds as explained in People v. Santamaria (1991) 229 Cal.App.3d 269, 279.

    Footnote 76
  77. In re Harris, supra, 5 Cal.4th 813, 836.

    Footnote 77
  78. Id. at pp. 838–840.

    Footnote 78
  79. In re Harris, supra, 5 Cal.4th 813, 828 [“Habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate.”].

    Footnote 79
  80. People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267 [“We have repeatedly stressed that [if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected.” (Citations, quotations omitted)].

    Footnote 80
  81. Id.

    Footnote 81
  82. People v. Apodaca (1979) 76 Cal.App.3d 479, 489, fn.3 [“Appellate counsel could have filed such a writ in this court and had it consolidated with this appeal . . . .”], overruled on other grounds as stated in People v. Davis (1994) 7 Cal.4th 797. 806–807.

    Footnote 82
  83. In re Dexter (1979) 25 Cal.3d 921, 925; In re Muszalski (1975) 52 Cal.App.3d 500, 503, 508.

    Footnote 83
  84. In re Hudson (2006) 143 Cal.App.4th 1, 7 [“It is well settled that inmates must exhaust available administrative remedies before filing a petition for habeas corpus in the courts.”].

    Footnote 84
  85. See, e.g., In re Dexter, supra, 25 Cal.3d 921.

    Footnote 85
  86. Wolff v. McDonnell (1974) 418 U.S. 539, 556.

    Footnote 86
  87. U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.

    Footnote 87
  88. Holt v. Hobbs (2015) 574 U.S. ___ [135 S.Ct. 853].

    Footnote 88
  89. Wolff v. McDonnell, supra, 418 U.S. 539, 556

    Footnote 89
  90. In re Head (1986) 42 Cal.3d 223, 229–230; see, e.g., Pen. Code, § 2084 [“The department shall provide each prisoner with a bed, sufficient covering of blankets, and with garments of substantial material and of distinctive manufacture, and with sufficient plain and wholesome food of such variety as may be most conducive to good health.”].

    Footnote 90
  91. In re Allison (1967) 66 Cal.2d 282, 285 [“The writ of habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled even in confinement.”].

    Footnote 91
  92. Cal. Code Regs., tit. 15, §§ 3084.1–3084.7

    Footnote 92
  93. Cal. Code Regs., tit. 15, §§ 3084.1–3084.7; Wright v. State of California (2004) 122 Cal.App.4th 659, 666–667.

    Footnote 93
  94. Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1380–1384 [petitioner must exhaust the CDCR’s remedies where he was denied a new glasses prescription].

    Footnote 94
  95. Cal. Code Regs., tit. 15, § 3084.8, subd. (b).

    Footnote 95
  96. In re Serna (1978) 76 Cal.App.3d 1010, 1017.

    Footnote 96
  97. Id. at pp. 1014–1015.

    Footnote 97
  98. Diaz v. Quitoriano (1969) 268 Cal.App.2d 807, 812 [“The rule that a party must exhaust his administrative remedies prior to seeking relief in the courts ‘has no application in a situation where an administrative remedy is unavailable or inadequate.’ [Citations.]”].

    Footnote 98
  99. See Pen. Code, §§ 1473–1508; In re Reno (2012) 55 Cal.4th 428, 459–460; In re Sanders (1999) 21 Cal.4th 697, 703–704.

    Footnote 99
  100. In re Clark (1993) 5 Cal.4th 750, 765 [“It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief.”].

    Footnote 100
  101. In re Reno, supra, 55 Cal.4th 428, 459.

    Footnote 101
  102. In re Clark, supra, 5 Cal.4th 750, 765, fn. 5.

    Footnote 102
  103. In re Reno, supra, 55 Cal.4th 428, 460–461.

    Footnote 103
  104. In re Clark, supra, 5 Cal.4th 750, 765, fn. 5.

    Footnote 104
  105. In re Robbins (1998) 18 Cal.4th 770, 811.

    Footnote 105
  106. Id. at p. 811.

    Footnote 106
  107. In re Hunter (2012) 205 Cal.App.4th 1529, 1537.

    Footnote 107
  108. See, e.g., 28 U.S.C. § 2244, subd. (d)(1).

    Footnote 108
  109. E.g., 28 U.S.C. § 2244, subd. (d)(1)(A).

    Footnote 109
  110. Cullen v. Pinholster (2011) 563 U.S. 170, 181 [“[A] federal court may not grant such applications unless, with certain exceptions, the applicant has exhausted state remedies.”].

    Footnote 110
  111. Cal. Const., art. I, § 11; Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 543.

    Footnote 111
  112. Pennsylvania v. Finley (1987) 481 U.S. 551, 556–557; In re Barnett (2003) 31 Cal.4th 466, 475 [“California likewise confers no constitutional right to counsel for seeking collateral relief from a judgment of conviction via state habeas corpus proceedings.”]; Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357 [“[A] criminal defendant has no constitutional right to counsel in habeas corpus proceedings . . . .”].

    Footnote 112
  113. Gideon v. Wainwright (1963) 372 U.S. 335; Evitts v. Lucey (1985) 469 U.S. 387, 392, 403–405 [right to effective assistance of counsel in state appeals].

    Footnote 113
  114. In re Scott (2003) 29 Cal.4th 783, 815 [“[A] habeas corpus proceeding like this one is civil in nature for these purposes.”].

    Footnote 114
  115. Id. at pp. 815–816, n.6 [“It is a special proceeding and not entirely analogous to either category.”]; In re Head (1986) 42 Cal.3d 223.

    Footnote 115
  116. Cal. Rules of Court, rule 4.551, subd. (c)(2); In re Clark (1993) 5 Cal.4th 750, 780 [“This court has held, however, that if a petition attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.”]; Pen. Code, § 987.2.

    Footnote 116
  117. Cal. Rules of Court, rule 4.551, subd. (c)(2).

    Footnote 117
  118. Cal. Rules of Court, rule 4.551, subd. (c)(2).

    Footnote 118
  119. Cal. Rules of Court, rule 4.551, subd. (c)(2).

    Footnote 119
  120. Nolo’s Plain-English Law Dictionary, Capital Case, available at https://archive.is/ACN9I (last accessed Nov. 25, 2015).

    Footnote 120
  121. Gov’t Code, § 68662.

    Footnote 121
  122. In re Clark (1993) 5 Cal.4th 750, 783–784 [stating that counsel in non-capital cases do not have an obligation to investigate possible bases for habeas corpus]; In re Sanders (1999) 21 Cal.4th 697, 717, fn.11 [same].

    Footnote 122
  123. Cal. Const., art. VI, § 1.

    Footnote 123
  124. Cal. Const., art. VI, § 4; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015), available here.

    Footnote 124
  125. Cal. Const., art. VI, § 3; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015).

    Footnote 125
  126. Cal. Const., art. VI, § 2; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015).

    Footnote 126
  127. Cal. Const., art. VI, § 10; In re Roberts (2005) 36 Cal.4th 575, 582–583.

    Footnote 127
  128. Brown v. Pitchess (1975) 13 Cal.3d 518, 521.

    Footnote 128
  129. Id. at p. 521.

    Footnote 129
  130. In re Hillery (1962) 202 Cal.App.2d 293, 294 [“[T]his court has discretion to refuse to issue the writ as an exercise of original jurisdiction on the ground that application has not been made therefor in a lower court in the first instance.”]; In re Ramirez (2001) 89 Cal.App.4th 1312, 1316; In re Scott (2004) 119 Cal.App.4th 871, 877 [“[W]e generally require that application first be made to the superior court before filing a petition for writ of habeas corpus in this court . . . .”].

    Footnote 130
  131. Cal. Const., art. VI, § 10; Griggs v. Superior Court of San Bernardino County (1976) 16 Cal.3d 341, 346 [“[T]here is now no territorial limitation on the power of a superior court to entertain a petition for habeas corpus relief.”]; In re Roberts, supra, 36 Cal.4th 575, 582.

    Footnote 131
  132. In re Roberts, supra, 36 Cal.4th 575, 583–584; see also Cal. Rules of Court, rule 4.552, subd. (b)(2).

    Footnote 132
  133. In re Roberts, supra, 36 Cal.4th 575, 583–584; Cal. Rules of Court, rule 4.552, subd. (b)(2)(A).

    Footnote 133
  134. In re Roberts, supra, 36 Cal.4th 575, 583–584; Cal. Rules of Court, rule 4.552, subd. (b)(2)(B).

    Footnote 134
  135. Cal. Rules of Court, rule 4.552, subd. (b)(2)(C).

    Footnote 135
  136. Gov’t Code, § 69100; Cal. Const., art. VI, § 3.

    Footnote 136
  137. Cal. Const., art. VI, § 10; Griggs v. Superior Court of San Bernardino County, supra, 16 Cal.3d 341, 346.

    Footnote 137
  138. Cal. Rules of Court, rule 8.385, subd. (c)(1).

    Footnote 138
  139. Cal. Rules of Court, rule 8.385, subd. (c)(1).

    Footnote 139
  140. Cal. Rules of Court, rule 8.385, subd. (c)(2).

    Footnote 140
  141. Cal. Rules of Court, rule 8.385, subd. (c)(3).

    Footnote 141
  142. Cal. Rules of Court, rule 4.551, subds. (a)(1), (2); see also Cal. Rules of Court, rule 8.380, subd. (a) [appellate court].

    Footnote 142
  143. Cal. Rules of Court, rule 4.551, subd. (a)(2).

    Footnote 143
  144. Cal. Rules of Court, rule 4.551, subd. (a)(2).

    Footnote 144
  145. People v. Karis (1988) 46 Cal.3d 612, 656.

    Footnote 145
  146. Pen. Code, § 1474, subd. (1).

    Footnote 146
  147. In re Lawler (1979) 23 Cal.3d 190, 194; Pen. Code, § 1474.

    Footnote 147
  148. Pen. Code, § 1474, subd. (1).

    Footnote 148
  149. In re Wessley W., supra, 125 Cal.App.3d 240, 246; Pen. Code, § 1473, subd. (a).

    Footnote 149
  150. Pen. Code, § 1474, subd. (1); People v. Romero, supra, 8 Cal.4th 728, 737.

    Footnote 150
  151. Pen. Code, § 1202a.

    Footnote 151
  152. In re Lawler, supra, 23 Cal.3d 190, 194; People v. Romero, supra, 8 Cal.4th 728, 737; Pen. Code, § 1474.

    Footnote 152
  153. In re Lawler, supra, 23 Cal.3d 190, 194; People v. Romero, supra, 8 Cal.4th 728, 737; Pen. Code, § 1474.

    Footnote 153
  154. Pen. Code, § 1475 [“Every application for a writ of habeas corpus must be verified, and shall state whether any prior application or applications have been made for a writ in regard to the same detention or restraint complained of in the application, and if any prior application or applications have been made the later application must contain a brief statement of all proceedings had therein, or in any of them, to and including the final order or orders made therein, or in any of them, on appeal or otherwise.”].

    Footnote 154
  155. Pen. Code, § 1475

    Footnote 155
  156. People v. Duvall, supra, 9 Cal.4th 464, 474 [“The petition should . . . include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.”].

    Footnote 156
  157. Pen. Code, § 1474, subd. (3); In re Application of Newell (1923) 64 Cal.App. 103, 103.

    Footnote 157
  158. Code Civ. Proc., § 446; People v. McCarthy (1986) 176 Cal.App.3d 593, 596–597 [habeas petition my not be signed based on mere information and belief]; see also Judicial Council Form MC-275.

    Footnote 158
  159. In re Champion (2014) 58 Cal.4th 965, 1006–1007.

    Footnote 159
  160. People v. Duvall, supra, 9 Cal.4th 464, 474; In re Application of Williams (1919) 44 Cal.App. 510.

    Footnote 160
  161. E.g., In re Rozzo (2009) 172 Cal.App.4th 40, 61 [referencing the petitioner’s memorandum of points and authorities for support]; see also Judicial Council Form MC-275 [inviting petitioners to attach additional pages as necessary].

    Footnote 161
  162. Pen. Code, § 1474; Cal. Rules of Court, rule 4.551, subds. (a)(1), (a)(2); People v. Romero (1994) 8 Cal.4th 728, 737 [“A habeas corpus proceeding begins with the filing of a verified petition for a writ of habeas corpus.”].

    Footnote 162
  163. But see Pen. Code, § 1474 [suggesting that a habeas petition may be filed on behalf of the party for whose relief it is intended, rather than directly by the party or his/her attorney].

    Footnote 163
  164. Cal. Rules of Court, rule 4.551, subd. (a)(3)(A).

    Footnote 164
  165. Cal. Rules of Court, rule 4.551, subd. (a)(3)(B).

    Footnote 165
  166. Cal. Rules of Court, rule 4.551, subd. (a)(3)(B)(ii).

    Footnote 166
  167. Pen. Code, § 859c; see also Fuller v. Superior Court (2004) 125 Cal.App.4th 623, 626–628.

    Footnote 167
  168. In re Lawler supra, 23 Cal.3d 190, 194 [“If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue.”]; In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4.

    Footnote 168
  169. Cal. Rules of Court, rule 4.551, subd. (c)(1); In re Clark (1993) 5 Cal.4th 750, 769, fn. 9.

    Footnote 169
  170. In re Lawler supra, 23 Cal.3d 190, 194

    Footnote 170
  171. Cal. Rules of Court, rule 4.551, subd. (c)(1).

    Footnote 171
  172. Pen. Code, § 1480; People v. Romero (1994) 8 Cal.4th 728, 737; Cal. Rules of Court, rule 4.551, subd. (d).

    Footnote 172
  173. Cal. Rules of Court, rule 4.551, subds. (a)(4)(C), (b)(1); People v. Romero, supra, 8 Cal.4th 728, 737; In re Williams (1994) 7 Cal.4th 572, 586-587.

    Footnote 173
  174. Cal. Rules of Court, rule 4.551, subd. (b)(2).

    Footnote 174
  175. Cal. Rules of Court, rule 4.551, subd. (b)(2).

    Footnote 175
  176. Cal. Rules of Court, rule 4.551, subd. (a)(4)(B); People v. Romero, supra, 8 Cal.4th 728, 737 [“If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright, such dispositions being commonly referred to as ‘summary denials.'”].

    Footnote 176
  177. Cal. Rules of Court, rule 4.551, subd. (c)(2).

    Footnote 177
  178. Cal. Rules of Court, rule 4.551, subd. (a)(5).

    Footnote 178
  179. Cal. Rules of Court, rule 4.551, subd. (a)(5).

    Footnote 179
  180. Cal. Rules of Court, rule 4.551, subd. (g).

    Footnote 180
  181. Cal. Rules of Court, rule 4.551, subd. (d).

    Footnote 181
  182. Cal. Rules of Court, rule 4.551, subd. (d); People v. Duvall (1995) 9 Cal.4th 464, 475; In re Saunders (1970) 2 Cal.3d 1033, 147 [“In a habeas corpus proceeding the return to the writ or order to show cause alleges facts tending to establish the legality of the challenged detention and is analogous to the complaint in a civil proceeding.”]; Pen. Code, § 1480.

    Footnote 182
  183. People v. Romero, supra, 8 Cal.4th 728, 738–739, fn. 6; for other requirements see Pen. Code, § 1480.

    Footnote 183
  184. In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2.

    Footnote 184
  185. Cal. Rules of Court, rule 4.551, subd. (d) [“Any material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding.”]; People v. Duvall, supra, 9 Cal.4th 464, 480 [“[T]he respondent is deemed to have admitted those material factual allegations that they fail to dispute”].

    Footnote 185
  186. People v. Duvall, supra, 9 Cal.4th 464, 480

    Footnote 186
  187. Id. at p. 480.

    Footnote 187
  188. In re Saunders, supra, 2 Cal.3d 1033, 1048.

    Footnote 188
  189. Cal. Rules of Court, rule 4.551, subd. (e).

    Footnote 189
  190. In re Reno (2012) 55 Cal.4th 428, 458–459.

    Footnote 190
  191. In re Marquez (2007) 153 Cal.App.4th 1, 12; Pen. Code, § 1484.

    Footnote 191
  192. Ibid.; Cal. Rules of Court, rule 4.551, subd. (e) [“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.”].

    Footnote 192
  193. In re Lawler, supra, 23 Cal.3d 190, 195 [The factual allegations of the return will be deemed true unless the petitioner in his traverse denies the truth of the respondent’s allegations . . . .”]; In re Saunders, supra, 2 Cal.3d 1033, 1047-1048; People v. Duvall, supra, 9 Cal.4th 464, 477.

    Footnote 193
  194. People v. Duvall, supra, 9 Cal.4th 464, 477 [“To respond to the return, the habeas corpus petitioner may either file a traverse or the parties may stipulate that the original habeas corpus petition be treated as a traverse.”].

    Footnote 194
  195. People v. Romero, supra, 8 Cal.4th 728, 477 [“The petitioner’s response to the return, commonly known as the traverse, may incorporate the allegations of the petition.”]; In re Lewallen, supra, 23 Cal.3d 274, 277; see also, e.g., In re Sodersten (2007) 146 Cal.App.4th 1163, 1173, fn. 6.

    Footnote 195
  196. The Law Dictionary, Incorporation by Reference, available at https://archive.is/PvOdR (last accessed Nov. 25, 2015.); e.g., Prob. Code, § 6130.

    Footnote 196
  197. In re Lawley, supra, 42 Cal.4th 1231, 1248, quoting In re Clark, supra, 5 Cal.4th 750, 781, fn. 16.

    Footnote 197
  198. Id.

    Footnote 198
  199. People v. Romero, supra, 8 Cal.4th 728, 739 [“Once the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed.”]; Cal. Rules of Court, rule 4.551, subd. (f).

    Footnote 199
  200. Pen. Code, § 1484; People v. Romero, supra, 8 Cal.4th 728, 739 [“[I]f the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing.”]; Cal. Rules of Court, rule 4.551, subd. (f) [“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.”].

    Footnote 200
  201. In re Visciotti (1996) 14 Cal.4th 325, 351.

    Footnote 201
  202. Cal. Rules of Court, rule 4.551, subd. (f).

    Footnote 202
  203. Cal. Rules of Court, rule 4.551, subd. (g).

    Footnote 203
  204. In re Crow, supra, 4 Cal.3d 613, 619–620.

    Footnote 204
  205. Theresa Hsu Schriever, In Our Own Backyard: Why California Should Care About Habeas Corpus, 45 McGeorge L. Rev. 763, 778, 781 (2014), available here.

    Footnote 205
  206. Judicial Council of California, 2014 Court Statistics Report at p. 152, available here.

    Footnote 206
  207. Theresa Hsu Schriever, In Our Own Backyard: Why California Should Care About Habeas Corpus, 45 McGeorge L. Rev. 763, 795 (2014).

    Footnote 207
  208. In re Hochberg (1970) 2 Cal.3d 870, 876 [“The superior court’s order denying habeas corpus relief was not appealable.”]; People v. Ryan (1953) 118 Cal.App.2d 144, 149.

    Footnote 208
  209. In re Reed (1983) 33 Cal.3d 914, 918, fn. 2 [“[T]he sole and proper remedy after denial of a petition for writ of habeas corpus by a superior court is to file a new petition with the court of appeal, which has original jurisdiction in habeas corpus matters.”], overruled on other grounds in In re Alva (2004) 33 Cal.4th 254, 292; Cal. Const., art. VI, § 10.

    Footnote 209
  210. Pen. Code, § 1506 [“[I]n all criminal cases where an application for a writ of habeas corpus has been heard and determined in a court of appeal, either the defendant or the people may apply for a hearing in the Supreme Court”]; Cal. Rules of Court, rule Rule 8.388.

    Footnote 210
  211. Cal. Const., art. VI, § 10 [“The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings.”].

    Footnote 211
  212. In re Reed, supra, 33 Cal.3d 914, 918, fn. 2 [“Further review may be sought in this court either by a new petition for habeas corpus or, preferably, by a petition for hearing.” (emphasis added)]; In re Michael E. (1975) 15 Cal.3d 183, 193, fn. 15 [“Not only is rebriefing wasteful, but published opinions remain in the books even when, as in this case, a hearing would have been granted, thus compounding the problems of courts and practitioners in researching the law.”].

    Footnote 212
  213. Pen. Code, § 1506; Cal. Rules of Court, rule Rule 8.388.

    Footnote 213
  214. Pen. Code, § 1506; Cal. Rules of Court, rule Rule 8.388.

    Footnote 214
  215. In re Alpine (1928) 203 Cal. 731, 746 [“While it would not be within the power of the legislature to absolutely abrogate the privilege vouchsafed by the writ of habeas corpus, it is unquestionably subject to statutory control and regulation.”].

    Footnote 215
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