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Santa Barbara Lawyer, Douglas Hayes

(805) 966-4171 • 125 East Victoria Street, Suite H • Santa Barbara

PRACTICE AREAS

  • Criminal Law
  • Drug Cases/Medicinal Marijuana
  • DUI/DWI/Driving Offenses
  • DMV Hearings
  • Domestic Violence
  • Murder/Homicide/Death Penalty
  • Gang-Related Cases
  • Assault & Battery
  • Misdemeanors
  • Felonies
  • Personal Injury
  • Writs & Appeals
  • Immigration Consequences

APPEALS AND POST-CONVICTION PROCEEDINGS

All criminal defendants convicted of either felonies or misdemeanors have a right to appeal either the judgment of conviction, the sentence, or both, unless he, or she was convicted by his, or her plea, in which case felony defendants seeking to appeal must request a Certificate of Appealability from the trial judge if the issue involves something other than the appeal of the sentence or an order denying a motion to suppress evidence. If the appeal is from a misdemeanor conviction, it will be heard by the Appellate Division of the Superior Court. If the appeal is from a felony conviction, it will be heard by the Court of Appeal in the District in which the judgment of conviction was had. At present, there are 6 appellate districts in California and Santa Barbara is in the Second District. If the appeal is unsuccessful (less than 20% of criminal convictions are reversed), the appellant may petition the California Supreme Court to review the decision of the Court of Appeal. There is no right to such a review, only the right to ask, and less than 10% of the petitions for review are granted. Upon review, less than 2% of criminal convictions are reversed.

Petitions for writs of error coram nobis is a rarely used procedure by which a criminal conviction for which the defendant is no longer incarcerated is vacated because some fact, unknown at the time of the conviction and not discoverable with due diligence, would have made that conviction unlikely had the court known about it at the time. This procedure is sometimes used when, for example, trial counsel did not know that the defendant was not a citizen and advised him or her to plead to an offense that was at the time deportable. In California, a motion to vacate the judgment is frequently used in place and stead of coram nobis.

Petitions for writs of habeas corpus are used either before or after a conviction as a means for the court to inquire into the legality of the defendant’s restraint, or the conditions of his, or her confinement. Before conviction, the writ may be used when bail has been denied by the trial court, when a prisoner has not been brought before a magistrate or judge in a timely manner, when a prisoner is not getting proper medical care, or for other unacceptable jail conditions. After trial, the writ may be used only after all direct appeals have been exhausted, if the writ is seeking relief from the conviction, and the petitioner is alleging that some constitutional right was denied him, or her at trial. Such writs may be prosecuted through the trial, appellate and state supreme courts and then into the federal system of district court, circuit court of appeal and, finally, United States Supreme Court. The writ may also be used to challenge the conditions of a prisoner’s confinement, e.g., lack of proper medical care, refusal of prison authorities to allow religious practices, etc.

It is important to understand that under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, all writ proceedings in federal court must be commenced within 1 year of the date the last ruling on the issue by a state court became final. The Ninth Circuit, which includes California, has interpreted that requirement to mean that habeas corpus petitions by prisoners in state custody (28 U.S.C. section 2254) must be filed not later than 1 year after the date when the petitioner’s request for hearing (certiorari) by the United States Supreme Court was due, i.e., 90 days after the decision of the state supreme court was filed.

 

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