Tooby's California Post-Conviction Relief for Immigrants

 

An order denying a petition for a writ of habeas corpus may not be appealed.  It is necessary to file an original petition in the reviewing court.[263]  In Gallardo, the defendant filed a petition for writ of habeas corpus in superior court, raising ineffective assistance of counsel.  The court issued an order to show cause, and then denied the petition.  The defendant appealed, and the court held that a denial of the habeas petition is not directly appealable; a new petition must be filed in the court of appeal.[264]  The court of appeals treated the appeal as a petition for a writ of habeas corpus, but warned it would not be so “accommodating” in the future. 

 

While not a jurisdictional rule, most courts of appeal will decline to address habeas corpus claims that could have been, but were not, raised first in a lower court.[265]  Jurisdiction over habeas corpus challenges to misdemeanor convictions arises in the first instance in the superior court, not the appellate division.[266]

 

When the appellate court issues an Order to Show Cause returnable in the trial court, the trial court may not deny the petition without holding an evidentiary hearing.[267]

[263] People v. Gallardo (1999) 77 Cal.App.4th 971.

[264] See Penal Code § 1506 (prosecution was given the right to appeal by statute, but no similar right was granted to the defendant); In re Clark (1993) 5 Cal.4th 750.

[265] In re Hillery (1962) 202 Cal.App.2d 293, 294; California Rules of Court, Rule 56(a)(1).

[266] In re Ramirez (2001) 89 Cal.App.4th 1312.

[267] Rose v. Superior Court (2000) 81 Cal.App.4th 564.