Tooby's California Post-Conviction Relief for Immigrants

 

A legally indigent petitioner, who is unable to retain counsel, is entitled to counsel appointed by the court in extraordinary writ proceedings.[27]  Equal protection, which applies “whenever a state affords a direct or collateral remedy to attack a criminal conviction”[28] requires that:

 

counsel must also be provided for an indigent (1) who brings a collateral attack on his conviction, once he has made “adequately detailed factual allegations stating a prima facie case” (People v. Shipman, supra, 62 Cal.2d at p. 232, 42 Cal.Rptr. at p. 5, 397 P.2d at p. 997), or (2) who appeals from the denial of such a collateral attack, where such an appeal is permitted by law.[29]

 

            An indigent habeas petitioner is also specifically entitled to court‑appointed counsel, at least after an order to show cause has been issued.[30]

 

            In the superior court, a very useful statute requires the State of California to reimburse a county not only for any legal fees expended on behalf of an indigent habeas petitioner, but also for all necessary expenses of such litigation, including investigation fees, expert witness fees, and the like.[31]  The only limitation on this right of counties to reimbursement is that the habeas corpus action must be on behalf of a “prisoner,”[32] which is defined as “any person committed to a state prison, including” those housed in other facilities or who have escaped, but not including those who have been released on parole.  This statute may be used in persuading a superior court to appoint counsel and authorize necessary expenses, since state reimbursement of the county is mandatory.

 

            Appointment of counsel is also possible in federal writ proceedings under the Criminal Justice Act, 18 U.S.C. § 3006A.  There is no absolute right to the appointment of counsel in federal habeas corpus as a general matter, but rather under an interests of justice standard.[33]  If, however, the court orders an evidentiary hearing, counsel must be appointed for a petitioner who qualifies under § 3006A(g).[34] 

[27] People v. Shipman (1965) 62 Cal.2d 226, 231, 42 Cal.Rptr. 1, 4 (right to appointed counsel on coram nobis); see also Lane v. Brown, 372 U.S. 477, 484  (1963).

[28] People v. Shipman (1965) 62 Cal.2d 226, 231.

[29] People v. Barton (1978) 21 Cal.3d 513, 146 Cal.Rptr. 727, 730 n.3.

[30] Charlton v. Superior Court (1979) 93 Cal.App.3d 858, 156 Cal.Rptr. 107, 109.

[31] Penal Code § § 4750(a), 4751(d).

[32] Penal Code § 4750(c).

[33] See 18 U.S.C. § 3006A(a)(2)(B). 

[34] See Rules Governing § 2245 and § 2255 Cases, Rule 8(c).