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2014 California Rules of Court

Rule 8.386. Proceedings if the return is ordered to be filed in the reviewing court

(a) Application

This rule applies if the Supreme Court orders the return to be filed in the Supreme Court or the Court of Appeal or if the Court of Appeal orders the return to be filed in the Court of Appeal.

(b) Serving and filing return

(1)Unless the court orders otherwise, any return must be served and filed within 30 days after the court issues the order to show cause.

(2)If the return is filed in the Supreme Court, the respondent must file the number of copies of the return and any supporting documents required by rule 8.44(a). If the return is filed in the Court of Appeal, the respondent must file the number of copies of the return and any supporting documents required by rule 8.44(b).

(3)Two copies of the return and any supporting documents must be served on the petitioner's counsel, and if the petitioner is represented for the habeas corpus proceeding by court-appointed counsel other than the State Public Defender's Office or Habeas Corpus Resource Center, one copy must be served on the applicable appellate project.

(Subd (b) amended effective January 1, 2014.)

(c) Form and content of return

(1)The return must be either typewritten or produced on a computer and must comply with Penal Code section 1480 and rules 8.40(b)-(c) and 8.204(a)-(b). Except in habeas corpus proceedings related to sentences of death, any memorandum accompanying a return must also comply with the length limits in rule 8.204(c).

(2)Rule 8.486(c)(1) and (2) govern the form of any supporting documents accompanying the return. The return must support any reference to a matter in the supporting documents by a citation to its index tab and page.

(3)Any material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding.

(Subd (c) amended effective January 1, 2014.)

(d) Traverse

(1)Unless the court orders otherwise, within 30 days after the respondent files a return, the petitioner may serve and file a traverse.

(2)Any traverse must be either typewritten or produced on a computer and must comply with Penal Code section 1484 and rules 8.40(b)-(c) and 8.204(a)-(b). Except in habeas corpus proceedings related to sentences of death, any memorandum accompanying a traverse must also comply with the length limits in rule 8.204(c).

(3)Rule 8.486(c)(1) and (2) govern the form of any supporting documents accompanying the traverse.

(4)Any material allegation of the return not denied in the traverse is deemed admitted for purposes of the proceeding.

(5)If the return is filed in the Supreme Court, the attorney must file the number of copies of the traverse required by rule 8.44(a). If the return is filed in the Court of Appeal, the attorney must file the number of copies of the traverse required by rule 8.44(b).

(Subd (d) amended effective January 1, 2014.)

(e) Judicial notice

Rule 8.252(a) governs judicial notice in the reviewing court.

(f) Evidentiary hearing ordered by the reviewing court

(1)An evidentiary hearing is required if, after considering the verified petition, the return, any traverse, 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.

(2)The court may appoint a referee to conduct the hearing and make recommended findings of fact.

(g) Oral argument and submission of the cause

Unless the court orders otherwise:

(1)Rule 8.256 governs oral argument and submission of the cause in the Court of Appeal.

(2)Rule 8.524 governs oral argument and submission of the cause in the Supreme Court.

Rule 8.386 amended effective January 1, 2014; adopted effective January 1, 2009.

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