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2021 California Rules of Court

Rule 8.397. Claim of ineffective assistance of trial counsel not raised in the superior court

(a) Application

This rule governs claims under Penal Code section 1509.1(b) of ineffective assistance of trial counsel not raised in the superior court habeas corpus proceeding giving rise to an appeal under this article.

(b) Discussion of claim in briefs

(1)  A claim subject to this rule must be raised in the first brief filed by the petitioner.

(2)  All discussion of claims subject to this rule must be addressed in a separate part of the brief under a heading identifying this part as addressing claims of ineffective assistance of trial counsel that were not raised in a superior court habeas corpus proceeding.

(3)  Discussion of each claim within this part of the brief must be under a separate subheading identifying the claim. Petitioner's brief must include a summary of the claim under the subheading, and each claim must be supported by argument and, if possible, by citation of authority.

(4)  This part of the brief may include references to matters:

(A)  In the record on appeal prepared under rule 8.395. Any reference to a matter in the record must be supported by a citation to the volume and page number of the record where the matter appears.

(B)  Of which the court has taken judicial notice.

(C)  In a proffer required under (c). Any reference to a matter in a proffer must be supported by a citation to its index number or letter and page.

(c) Proffer

(1)  A brief raising a claim under Penal Code section 1509.1(b) of ineffective assistance of trial counsel not raised in a superior court habeas corpus proceeding must be accompanied by a proffer of any reasonably available documentary evidence supporting the claim that is not in either the record on appeal prepared under rule 8.395 or matters of which the court has taken judicial notice. A brief responding to such a claim must be accompanied by a proffer of any reasonably available documentary evidence the People are relying on that is not in the petitioner's proffer, the record on appeal prepared under rule 8.395, or matters of which the court has taken judicial notice.

(A)  If a brief raises a claim that was the subject of an evidentiary hearing, the proffer must include a certified transcript of that hearing.

(B)  Evidence may be in the form of affidavits or declarations under penalty of perjury.

(2)  The proffer must comply with the following formatting requirements:

(A)  The pages must be consecutively numbered.

(B)  It must begin with a table of contents listing each document by its title and its index number or letter. If a document has attachments, the table of contents must give the title of each attachment and a brief description of its contents.

(C)  If submitted in paper form:

(i)  It must be bound together at the end of the brief or in separate volumes not exceeding 300 pages each.

(ii)  It must be index-tabbed by number or letter.

(3)  The clerk must file any proffer not complying with (2), but the court may notify the filer that it may strike the proffer and the portions of the brief referring to the proffer if the documents are not brought into compliance within a stated reasonable time of not less than five court days.

(4)  If any documents in the proffer are sealed or confidential records, rules 8.45-8.47 govern these documents.

(d) Evidentiary hearing

An evidentiary hearing is required if, after considering the briefs, the proffer, 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. The reviewing court may take one of the following actions:

(1)  Order a limited remand to the superior court to consider the claim under Penal Code section 1509.1(b). The order for limited remand vests jurisdiction over the claim in the superior court, which must proceed under rule 4.574(d)(2)-(3) and (e)-(g) and rule 4.575 for death penalty-related habeas corpus proceedings in the superior court. The clerk/executive officer of the Court of Appeal must send a copy of any such order to the clerk/executive officer of the Supreme Court.

(2)  Appoint a referee to conduct the hearing and make recommended findings of fact.

(3)  Conduct the hearing itself or designate a justice of the court to conduct the hearing.

(e) Procedures following limited remand

(1)  If the reviewing court orders a limited remand to the superior court to consider a claim under Penal Code section 1509.1(b), it may stay the proceedings on the remainder of the appeal pending the decision of the superior court on remand. The clerk/executive officer of the Court of Appeal must send a copy of any such stay to the clerk/executive officer of the Supreme Court.

(2)  If any party wishes to appeal from the superior court decision on remand, the party must file a notice of appeal as provided in rule 8.392.

(3)  If an appeal is filed from the superior court decision on remand, the reviewing court may consolidate this appeal with any pending appeal under Penal Code section 1509.1 from the superior court's decisions in the same habeas corpus proceeding. A copy of any consolidation order must be promptly sent to the superior court clerk. The superior court clerk must then augment the record on appeal to include all items listed in rule 8.395(a) from the remanded proceedings.

Rule 8.397 adopted effective April 25, 2019.

Advisory Committee Comment

Penal Code section 1509.1(b) states when a claim of ineffective assistance of trial counsel not raised in the superior court habeas corpus proceeding may be raised in an appeal under this article.

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