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2024 California Rules of Court

Rule 8.508. Petition for review to exhaust state remedies

(a) Purpose

After decision by the Court of Appeal in a criminal case, a defendant may file an abbreviated petition for review in the Supreme Court for the sole purpose of exhausting state remedies before presenting a claim for federal habeas corpus relief.

(b) Form and contents

(1)  The words "Petition for Review to Exhaust State Remedies" must appear prominently on the cover of the petition.

(2)  Except as provided in (3), the petition must comply with rule 8.504.

(3)  The petition need not comply with rule 8.504(b)(1)-(2) but must include:

(A)  A statement that the case presents no grounds for review under rule 8.500(b) and the petition is filed solely to exhaust state remedies for federal habeas corpus purposes;

(B)  A brief statement of the underlying proceedings, including the nature of the conviction and the punishment imposed; and

(C)  A brief statement of the factual and legal bases of the claim.

(Subd (b) amended effective January 1, 2007.)

(c) Service

The petition must be served on the clerk/executive officer of the Court of Appeal but need not be served on the superior court clerk.

(Subd (c) amended effective January 1, 2018.)

Rule 8.508 amended effective January 1, 2018; adopted as rule 33.3 effective January 1, 2004; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivision (b). Although a petition under this rule must state that "the case presents no grounds for review under rule 8.500(b)" (see (b)(3)(A)), this does not mean the Supreme Court cannot order review if it determines the case warrants review. The list of grounds for granting review in rule 8.500(b) is not intended to be exclusive, and from time to time the Supreme Court has exercised its discretion to order review in a case that does not present one of the listed grounds. (Compare U.S. Supreme Court Rule 10 [the listed grounds for granting certiorari, "although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers"].)

Subdivision (b)(3)(C) requires the petition to include a statement of the factual and legal bases of the claim. This showing is required by federal law: "for purposes of exhausting state remedies, a claim for relief [in state court] . . . must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." (Gray v. Netherland (1996) 518 U.S. 152, 162-163, citing Picard v. Connor (1971) 404 U.S. 270.) The federal courts will decide whether a petition filed in compliance with this rule satisfies federal exhaustion requirements, and practitioners should consult federal law to determine whether the petition's statement of the factual and legal bases for the claim is sufficient for that purpose.

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