In California, a habeas corpus petition must be filed while the client is still incarcerated, on probation or on parole, in order for the client to be considered “in custody.”  See § 6.34, infra.[27]  If probation or parole has ended, habeas may not be used.

 

            There are no statutory time requirements for the filing of post-conviction relief in California; the equitable doctrine of laches applies, and there is a requirement that the petitioner investigate and file the petition with due diligence.  Habeas writs have sometimes been issued many years after the conviction was suffered, but courts are increasingly warning that the laches doctrine will bar relief where there has been unreasonable delay by the defense that has prejudiced the prosecution.[28]  Relief should therefore be sought promptly after discovery of the grounds.

[27] If the petition is filed while the client is still on probation, for example, the court has jurisdiction to litigate the action to its conclusion, even if probation terminates in the meantime, so long as there is still sufficient continuing prejudice to the client (such as adverse immigration consequences) to prevent the case from being considered moot.  See California Continuing Education of the Bar (C.E.B.), Appeals and Writs in Criminal Cases, § 2.96.

[28] In re Clark (1993) 5 Cal.4th 750, 786.

Other

CAL POST CON " HABEAS " DUE DILIGENCE " STANDARD OF REVIEW OF GOOD CAUSE FOR DELAY
In re Watson, 104 Cal.Rptr.3d 403, 2010 WL 348400 (Cal.App. 4 Dist. Feb. 2, 2010)(petitioner showed good cause for delay in presenting sentencing claim under Cunningham: " We also conclude that Watson has shown good cause for any delay in seeking habeas corpus relief based on Cunningham and Apprendi. The Attorney General does not contradict Watson's representation that although Cunningham was decided in January 2007, he could not immediately file a habeas corpus petition raising the sentencing issue. Watson asserts that he was awaiting the district court's ruling on the evidentiary hearing on claims of ineffective assistance and his request for stay and abeyance. After a few months of waiting ... [Watson's] counsel decided to proceed back to state court with the unexhausted issues.... He also included the sentencing claim because Cunningham had rendered California's determinate sentencing law unconstitutional."). In In re Watson, the court of appeal described the standard of review of claims that a habeas corpus petition was not filed with due diligence: To avoid the bar of untimeliness with respect to petitions filed after close of briefing on direct appeal, the petitioner has the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness. [] Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. ( Robbins, supra, 18 Cal.4th at p. 780; see also Clark, supra, 5 Cal.4th at p. 781.) A claim that is substantially delayed without good cause, and therefore untimely, will be considered on the merits if the petitioner demonstrates, among other things, that the petitioner was convicted ... under an invalid statute. (Robbins, supra, 18 Cal.4th at p. 781.) (In re Watson, 104 Cal.Rptr.3d 403, 2010 WL 348400.)

CAL POST CON " HABEAS CORPUS " DUE DILIGENCE " UNCONSTITUTIONALITY OF STATUTE RELIEVES DEFENDANT FROM ANY CLAIM OF UNTIMELINESS
In re Watson, 104Cal.Rptr.3d 403, 2010 WL 348400 (Cal.App. 4 Dist. Feb. 2, 2010)(fact that defendant was sentenced under unconstitutional statute relieves him from any claim of untimeliness of a habeas corpus petition); citing In re Robbins, 18 Cal.4th 770, 780, 959 P.2d 311, 77 Cal.Rptr.2d 153 (August 3, 1998).

CAL POST CON " HABEAS -- MOOTNESS CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, HEALTH LAW
In re Mille, No. B217102 Defendant's petition for habeas relief, challenging an 84-day delay in transferring him from a county jail to a state hospital after the superior court ordered the sheriff to transport the defendant for evaluation and treatment, is denied as moot as defendant is no longer in custody of the county jail or the sheriff, having been transferred to the hospital, and thus has received the relief requested in the petition. However, instead of denying defendant's initial petition for writ of habeas corpus filed on June 3, 2009, the trial court should have ordered the sheriff to deliver defendant promptly to the state hospital for evaluation and treatment, and this court should have granted the petition which defendant filed 23 days after he filed with the trial court.