The petition must be filed in the superior court of the county where the conviction occurred, or where petitioner is restrained of his or her liberty.  Once filed in superior court, the court has 30 days in which to issue the writ or issue an order directing respondent to show cause (OSC) why the writ should not be issued.[254]  The court can grant itself a 30-day extension of time.[255]  The petition and OSC are filed and served on the respondent, who may file a “return” to the petition.[256]  Within 30 days after the filing of the return, petitioner may file a denial.[257]  Within 30 days after the filing of the denial, the court shall either grant or deny the relief sought or schedule an evidentiary hearing.[258]

 

The assignment of judges to hear habeas corpus actions varies from jurisdiction to jurisdiction.  In some locales, the original trial court is automatically assigned any post-conviction action filed in the case, but in other courts, individual judges have been designated to hear all habeas corpus filings.  If the original trial court is preferable, it can be argued that, by seeking habeas corpus relief in the superior court, the defendant would thereby be seeking review by one superior court judge of the ruling of another judge of the same court.  Such a reconsideration by one judge of the decision of another judge of the same court is generally prohibited,[259] unless specifically authorized by law.[260]  As noted above, although the Appellate Division has, by law, been granted jurisdiction to issue writs of mandate, prohibition, and certiorari to the superior court in cases within its appellate jurisdiction, it has not been granted such power in habeas corpus actions.

 

            If a criminal conviction is on appeal, a petition for habeas corpus can be filed in the appellate court, enabling the petitioner to go outside the confines of the record on appeal to show the illegality of the confinement.

 

            If ineffective assistance of counsel is raised as a claim in a habeas corpus action, the client waives the attorney-client privilege as to the actions of counsel that are challenged.[261]  See § 4.51, supra.  It is permissible, however, for the court to issue an order limiting that waiver to the habeas proceeding in which the ineffective assistance question is raised.  Thus, the court can prevent the State from using the discovery permitted in a habeas corpus action on retrial if the conviction is overturned, and limit use of other materials discovered through the waiver of the attorney-client privilege.[262]

[254] Cal. Rules of Court 260(a).

[255] Ibid.

[256] The California Supreme Court has relaxed former rules holding that conclusory allegations in the respondent's return were insufficient to warrant a hearing and now holds that the government need not plead detailed facts to require a hearing.  In re Duvall (1995) 9 Cal.4th 464, 37 Cal.Rptr.2d 259.  This raises possible issues under Wardius v. Oregon, 412 U.S. 470 (1973), in which the U.S. Supreme Court held that procedural rules must apply equally to prosecution and defense.  Thus, counsel for the immigrant can now argue that Duvall must be construed to relax the pleading requirements for petitioner as well as respondent.

[257] Cal. Rules of Court 260(b).

[258] Cal. Rules of Court 260(c).

[259] In re Kowalski (1971) 21 Cal.App.3d 67, 70.

[260] See Los Angeles Chemical Co. v. Superior Court (1990) 226 Cal.App.3d 703, 710-7.

[261] Wharton v. Calderon, 127 F.3d 1201 (9th Cir.1997). 

[262] Osband v. Woodford, 290 F.3d 1036 (9th Cir. 2002).

Ninth Circuit

POST CON RELIEF " FEDERAL " HABEAS " CUSTODY " CHALLENGING ONLY RESTITUTION DID NOT CHALLENGE LAWFULNESS OF CUSTODY AND SO COULD NOT SUSTAIN JURISDICTION UNDER 28 U.S.C. 2254
Bailey v. Hill, 599 F.3d 976 (9th Cir. March 25, 2010)(habeas petition challenging only state restitution order in criminal case did not challenge the lawfulness of custody under federal law and therefore did not sustain jurisdiction under the federal habeas statute, 28 U.S.C. 2254).

Lower Courts of Ninth Circuit

CAL POST CON " HABEAS CORPUS " COMMISSIONERS ARE AUTHORIZED SUMMARILY TO DENY HABEAS CORPUS AT LEAST WHERE THE PETITION DOES NOT COLLATERALLY ATTACK THE VALIDITY OF A CONVICTION
Gomex v. Superior Court (Felker), 54 Cal.4th 293, 278 P.3d 1168 (Jun. 18, 2012) (Code of Civil Procedure 259(a) authorizes commissioners to hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus, and commissioners have authority summarily to deny a petition for writ of mandamus or habeas corpus, at least when the petition seeks to enforce a prisoner's rights while in confinement -- but does not seek to collaterally attack the criminal conviction that provides the basis for that confinement " as a subordinate judicial duty properly undertaken by a commissioner within the meaning of article VI, 22 of the California Constitution).

Other

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.

CAL POST CON " HABEAS CORPUS " VENUE
Every judge in California has habeas corpus jurisdiction, and thus, no matter where the petitioner is held, the habeas corpus petition can be filed anywhere. The Rules of Court authorize (but do not require) a petition to be transferred to another county if the petition challenges a judgment in that county, or if the defendant challenges conditions of detention in that county. (Cal. Rules of Ct., rule 4.552(b)(2).) A petition challenging the denial of parole or a finding of unsuitability must be heard in the superior court which rendered the underlying judgment. (Cal. Rules of Ct., rule 4.552(c).) John Hamilton Scott, O.K., I Wrote It; Now Where Do I File It?, CALIFORNIA DEFENDER 74, 74 (Winter 2008-2009). Counsel must file the petition in the lowest available court. This gives the petitioner an additional chance of prevailing, since after a petition has been heard and denied, an additional petition raising the same claim can be filed only in higher courts. (Pen. Code 1475.) (Ibid.) The Appellate Division of the superior court does not have habeas corpus jurisdiction. It is prohibited from hearing habeas petitions by rule 4.552(d) of the Rules of Court. Therefore, jurisdiction to hear habeas corpus lies in the superior court (i.e., a single-judge writ court, whether the case is a felony or a misdemeanor. When a habeas corpus petition challenges the ruling of a superior court judge, it must be filed in the superior court, but it must be heard by a different judge. (Fuller v. Superior Court (2005) 125 Cal.App.4th 623.) (Ibid.) If the superior court denies a petition, counsel cannot appeal, but must file a new petition in the Court of Appeal. Although the new petition should set out the lower court proceedings, the review by the Court of Appeal is not of the order of the lower court denying relief, but of the challenged order or proceedings. (See In re Richard M. (1975) 14 Cal.3d 783, 789-790.)(Ibid.) If the Court of Appeal denies relief, a petition for writ of habeas corpus could he filed in the California Supreme Court. However, those who work for the court have made it clear that they much prefer that such cases be presented to them in a petition for review, rather than in a new habeas petition. (Ibid.)

CAL POST CON " HABEAS " DISCOVERY
Eulloqui v. Sup.Ct., No. B218578 Defendant's petition for a writ of mandate challenging a trial court's denial of a discovery motion he filed in a habeas proceeding is granted as defendant made a sufficient showing under Brady with respect to one category of information sought in the motion.