I. Petition for Review to Exhaust State Remedies
New Rule 33.3* (effective January 1, 2004) provides for "an abbreviated petition for review," the sole purpose of which is to "exhaust" federal issues in state court before presenting them in a federal habeas corpus petition. (Rule 33.3(a).) Instead of the statement of issues presented and explanation of grounds for review usually required by Rule 28.1(b)(2), the abbreviated petition must contain "a statement that the case presents no grounds for review under rule 28(b) and the petition is filed solely to exhaust state remedies for federal habeas corpus purposes." The petition also must contain a brief statement of the underlying proceedings and of the factual and legal bases of the federal claims. (Rule 33.3(b)(3).)
A. Potential Problems in Federal Court after Exhaustion Petition
It is for a federal court, in a subsequent habeas corpus proceeding, to decide whether or not the federal issues were adequately "exhausted." The Judicial Council acknowledges this in an Advisory Committee Comment to Rule 33.3:
Rule 33.3(b)(3)(C) requires the petition to include a statement of the factual and legal bases of the claim. This showing is required by federal law: "for purposes of exhausting state remedies, a claim for relief [in state court] . . . must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." (Gray v. Netherland (1996) 518 U.S. 152, 162-163, citing Picard v. Connor (1971) 404 U.S. 270.) The federal courts will decide whether a petition filed in compliance with this rule satisfies federal exhaustion requirements, and practitioners should consult federal law to determine whether the petition's statement of the factual and legal bases for the claim is sufficient for that purpose.
In other words, the "brief statement of the factual and legal bases of the claim" (Rule 33.3(b)(3)(C)) had better not be too brief.
B. Ethical Concerns About Using Rule 33.3
In my opinion, complying with the requirement to state "that the case
presents no grounds for review under rule 28(b)" (Rule 33.3(b)(3)(A)) would, in many cases, violate an ethical
prohibition on arguing against one's own client. (See People v. Feggans (1967) 67
Cal.2d 444, 447.) Such a statement communicates to the supreme court that review is not
"necessary to secure uniformity of decision or to settle an important question of law."
(Rule 28(b)(1).) How can that be consistent with arguing that the court of appeal made
an erroneous decision on a federal issue? If (as counsel usually will argue) the court of
appeal's opinion is contrary to existing federal case law (perhaps from other
jurisdictions), then isn't supreme court review necessary to secure uniformity of decision?
Is it appropriate to tell the supreme court that the client's issue isn't "important"?
I discussed this briefly with FDAP staff attorney Brad O'Connell. His opinion is
that using Rule 33.3 isn't arguing against the client, because the supreme court's granting
review would work to the client's disadvantage in many cases. Better to let the client go
on to the more friendly confines of the federal courts, in Brad's view.
C. Advantages of Using Rule 33.3
The "exhaustion petition" format makes it unnecessary to frame the arguments in terms of reasons why the California Supreme Court should grant review (or to have a separate section with reasons for granting review, for those who do that). One can essentially repeat the federal arguments made in the court of appeal (although they may have to be shortened, in light of the 8,400-word limit). Thus, an exhaustion petition is likely to take less time to prepare than a traditional petition raising the same issues.
I think it would be good form to at least briefly explain what was wrong with the court of appeal's analysis of the federal issues -- if for no other reason than to assist the client in a future federal habeas action -- but this isn't required by Rule 33.3 or for exhaustion.
The copying and binding expenses for an exhaustion petition are a bit lower, because the supreme court requires 8 copies instead of 13 (Rule 44(b)(1)(E)), and we're not required to serve the superior court clerk (Rule 33.3(c)).
II. Appeal After Guilty or Nolo Contendere Plea
Provisions on guilty plea appeals, formerly in Rule 31(d), now are in Rule 30(b).
The most significant change is that a request for a certificate of probable cause no longer
serves as an "intended notice of appeal." Now a defendant who seeks to attack the
validity of his plea (or admission of probation violation) must file both a notice of appeal
and a statement under Penal Code § 1237.5. (Rule 30(a)(1), (b)(1), (b)(4).) Oddly, the
new rule does not give an explicit deadline for filing the statement of grounds, but the
rule's authors probably intended that the statement be filed no later than the deadline for
filing a notice of appeal, which is 60 days after the judgment is rendered (Rule 30.1(a)).
(See People v. Mendez (1999) 19 Cal.4th 1084 (former Rule 31(d) required that
statement be filed within 60 days after rendition of judgment).)
III. Completing and Augmenting the Record
What used to be called a Rule 35(e) request now should be called a Rule 32.1(b) request. Actually, the procedure is authorized by a combination of Rule 12(b) and Rule 32.1(b); only the former refers to a party's notifying the superior court of a required part of the record.
For a time, there was no explicit provision for filing a motion to augment the record in a criminal case. New Rule 32.1(d) fills the gap, stating that "on motion of a party or on its own motion, the reviewing court may order the record augmented or corrected as provided in rule 12."
Interesting note: CAP-LA states that "the Court wants motions to augment to have blue covers." (Appellate Practice Update 2004 [seminar materials Jan. 30, 2004], p. 31.) Neither Rule 41, which governs motions in the reviewing court, nor Second District Local Rule 2, which governs augmentation, mentions anything about covers. An augmentation motion that I filed in Division Eight in July 2003 had my usual plain-paper white cover, and I heard no complaints; the motion was granted.
IV. Briefs in Noncapital Appeals
The primary rule governing briefs in noncapital appeals now is Rule 33. (Briefs in automatic appeals are governed by new Rule 36.)
A brief produced on a computer now has a word limit (25,500 words) instead of a page limit. A certificate of word count is required. (Rule 33(b)(1).) The word count certificate, tables of contents and authorities, and any attachment under Rule 14(d) are not counted against the word limit. (Rule 33(b)(3).)
V. Exhibits in Support of Habeas Corpus Petitions
Supporting documents accompanying a habeas petition filed by an attorney now must comply with Rule 56(d). (Rule 56.5(c)(4).) This means that they must be consecutively paginated and index-tabbed and begin with a table of contents. (Rule 56(d).)
Note: The primary rule covering habeas corpus petitions in the superior court has undergone significant changes. (See Rule 4.551.)
VI. Responsive Briefing on Petitions for Rehearing and Review
In the court of appeal, a party now may not file an answer to a petition for rehearing unless the court requests it. (Rule 25(b)(2).)
If a party files an answer for a petition for review, the party seeking review now may file a reply, regardless of whether or not the answer raises additional issues for review. (Rule 28(a)(3).)
VII. Number of Copies to File in Supreme Court
Brief on the merits in supreme court: original and 13 copies (formerly 14). (Rule 44(b)(1)(B).)
Petition for original writ (or response) in supreme court: original and 10 copies (formerly 13). (Rule 44(b)(1)(C).)
There were no changes in the number of copies to file in the court of appeal. (Rule 44(b)(2).)
VIII. More Changes
I've covered the rule changes effective January 1, 2004 that I think are most important for panel attorneys, but there were quite a few other changes. Both FDAP and ADI have posted useful charts describing the changes, on their Web sites.
The Judicial Council is continuing its revision project on the appellate rules. The "fourth installment" has been proposed by the Appellate Advisory Committee (chaired by Justice Kennard), and the public comment period has ended. The new rules, which would take effect July 1, 2004, govern juvenile cases, conservatorship and sterilization cases, and habeas corpus, among other things. The changes have not yet been adopted by the Judicial Council; they are posted on the "Recent Proposals" page on the Judicial Council's Web site.
*All rule references are to the California Rules of Court.
Martin Kassman / marty@kassman.com
© Martin Kassman 2004