California

Criminal Procedure

Criminal Procedure

Rule 4.551 – Habeas corpus proceedings

(a) Petition; form and court ruling

(1) Except as provided in (2) , the petition must be on the Petition for Writ of Habeas Corpus (form HC-001).
(2) For good cause, a court may also accept for filing a petition that does not comply with (a)(1). A petition submitted by an attorney need not be on the Judicial Council form. However, a petition that is not on the Judicial Council form must comply with Penal Code section 1474 and must contain the pertinent information specified in the Petition for Writ of Habeas Corpus (form HC-001) , including the information required regarding other petitions, motions, or applications filed in any court with respect to the conviction, commitment, or issue.
(3)

(A) On filing, the clerk of the court must immediately deliver the petition to the presiding judge or his or her designee. The court must rule on a petition for writ of habeas corpus within 60 days after the petition is filed.
(B) If the court fails to rule on the petition within 60 days of its filing, the petitioner may file a notice and request for ruling.

(i) The petitioner’s notice and request for ruling must include a declaration stating the date the petition was filed and the date of the notice and request for ruling, and indicating that the petitioner has not received a ruling on the petition. A copy of the original petition must be attached to the notice and request for ruling.
(ii) If the presiding judge or his or her designee determines that the notice is complete and the court has failed to rule, the presiding judge or his or her designee must assign the petition to a judge and calendar the matter for a decision without appearances within 30 days of the filing of the notice and request for ruling. If the judge assigned by the presiding judge rules on the petition before the date the petition is calendared for decision, the matter may be taken off calendar.
(4) For the purposes of (a)(3) , the court rules on the petition by:

(A) Issuing an order to show cause under (c) ;
(B) Denying the petition for writ of habeas corpus; or
(C) Requesting an informal response to the petition for writ of habeas corpus under (b).
(5) The court must issue an order to show cause or deny the petition within 45 days after receipt of an informal response requested under (b).
(b) Informal response

(1) Before passing on the petition, the court may request an informal response from:

(A) The respondent or real party in interest; or
(B) The custodian of any record pertaining to the petitioner’s case, directing the custodian to produce the record or a certified copy to be filed with the clerk of the court.
(2) A copy of the request must be sent to the petitioner. The informal response, if any, must be served on the petitioner by the party of whom the request is made. The informal response must be in writing and must be served and filed within 15 days. If any informal response is filed, the court must notify the petitioner that he or she may reply to the informal response within 15 days from the date of service of the response on the petitioner. If the informal response consists of records or copies of records, a copy of every record and document furnished to the court must be furnished to the petitioner.
(3) After receiving an informal response, the court may not deny the petition until the petitioner has filed a timely reply to the informal response or the 15-day period provided for a reply under (b)(2) has expired.
(c) Order to show cause

(1) The court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled to relief. In doing so, 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. If so, the court must issue an order to show cause.
(2) On issuing an order to show cause, the court must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel.
(3) 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.
(d) Return

If an order to show cause is issued as provided in (c) , the respondent may, within 30 days thereafter, file a return. Any material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding. The return must comply with Penal Code section 1480 and must be served on the petitioner.

(e) Denial

Within 30 days after service and filing of a return, the petitioner may file a denial. 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.

(f) Evidentiary hearing; when required

Within 30 days after the filing of any denial or, if none is filed, after the expiration of the time for filing a denial, the court must either grant or deny the relief sought by the petition or order an evidentiary hearing. 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. The petitioner must be produced at the evidentiary hearing unless the court, for good cause, directs otherwise.

(g) Reasons for denial of petition

Any order denying a petition for writ of habeas corpus must contain a brief statement of the reasons for the denial. An order only declaring the petition to be “denied” is insufficient.

(h) Extending or shortening time

On motion of any party or on the court’s own motion, for good cause stated in the order, the court may shorten or extend the time for doing any act under this rule. A copy of the order must be mailed to each party.

Cal. R. Ct. 4.551

Rule 4.551 amended January 15, 2019, effective January 22, 2019; amended effective January 1, 2009; adopted as rule 260 effective January 1, 1982; previously renumbered as rule 4.500 effective January 1, 2001; previously amended and renumbered effective January 1, 2002; previously amended effective January 1, 2004, andJanuary 1, 2007.

Advisory Committee Comment

The court must appoint counsel on the issuance of an order to show cause. (In re Clark (1993) 5 Cal.4th 750, 780 and People v. Shipman (1965) 62 Cal.2d 226, 231,232.) The Court of Appeal has held that under Penal Code section 987.2, counties bear the expense of appointed counsel in a habeas corpus proceeding challenging the underlying conviction. (Charlton v. Superior Court (1979) 93 Cal.App.3d 858, 862.) Penal Code section 987.2 authorizes appointment of the public defender, or private counsel if there is no public defender available, for indigents in criminal proceedings.

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