In both the Third and Fifth District Courts of Appeal, appointed counsel must move to expand the appointment to seek compensation for all writ petition work, including habeas corpus, mandamus, and certiorari, as well as other work outside of the scope of the appointment, such as an appearance and motion work in the trial court with limited exceptions. Simply stated, you will not be paid for work done outside of direct appeal without advance written approval from the courts in these two districts. This is one of the biggest differences between our courts and other courts/projects and may lead to some confusion.
To obtain pre-approval, counsel must file a formal, written application providing the court with sufficient information to determine if the work should be authorized. Thus, an expansion request must provide enough information such that counsel presents the court with at least a colorable claim, if not a prima facie case.
The relevant factors for each type of writ petition are explained more fully below.
Tip: An application to expand appointment is an ex parte request since it is an administrative matter involving compensation. It does not require service on the Attorney General. Serve your request only on CCAP and appellant.
See our preauthorization page for more steps on how to to apply for an expansion of the appointment.
If the court grants the application with a time limit, that limit must be adhered to for compensation purposes unless a further expansion is sought and granted by the court, or further authorization is ordered by the court. No amount of explanation on the claim form can support a recommendation beyond the court's ordered time limit.
The application for expansion of appointment to file a habeas petition must make a detailed showing of good cause to believe there are grounds for habeas relief. It will not be approved if it is speculative or appears to be a fishing expedition.
Before moving to expand the appointment, investigate and verify the facts. Unless there is some preliminary investigation, such as contacting trial counsel if the basis for the writ is ineffective assistance of counsel, you may not be able to make out a reasonable case for further activity. Counsel are permitted a very limited time to investigate a habeas issue without obtaining preauthorization (probably 2.5 hours), so when in doubt, get specific preauthorization for further investigation.
The application to expand appointment should not contain conclusory allegations; it should be accompanied by some evidence supporting the allegations, such as declarations or citations to the record. It should also discuss how the evidence outside the record will establish prejudice in relation to the conviction.
It is important at this point to set forth whether the petition will be filed in the appellate court or in the superior court. Since the appellate courts are not designed to handle evidentiary hearings in which there are factual disputes, and since they regard most of the trial process as a county responsibility, that is where the costs and work tend to be shifted. Thus, in the Fifth District, the court often denies the application without prejudice to filing in the superior court.
Of course, the courts make exceptions to their usual practice. In limited circumstances, the court will accept a petition in conjunction with the appeal where it is directly related to an appellate issue and there is no controversy over the facts. As a result, if there is a special reason why a petition should not be sent to the trial court initially, it would be wise to put that reason into the application to expand the appointment. Likewise, include any previous superior court habeas action in this explanation if there was such action.
Discussing some other key relevant factors in the expansion request will increase the chances of success:
First, counsel should explain how the issue to be raised is related to matters on appeal and not to a tangential issue, such as conditions of confinement.
Tip: Where to file it?
1. If the issue requires any factual proof, the original filing should be in the Superior Court, not the Court of Appeal. In this situation, ask for permission to prepare the writ petition on behalf of your client to be filed in the Superior Court.
2. According to Third District research staff attorneys: this court also prefers all original filings start in the Superior Court, so request permission to prepare the petition for filing in the Superior Court.
It is also important to explain why the client is not able to file a pro per habeas on the habeas form provided by the Judicial Council. For example, counsel might point out that the petitioner is a minor, has a disability, speaks another language, etc.
And if the issue raised in the petition is highly technical with respect to legal procedures and concepts, this should be explained in the motion to expand.
Tip: What time/costs to include in your request to expand?
1. Provide a time estimate of how long it will take to prepare the habeas petition;
2. Any extraordinary expenses counsel seeks to incur (e.g., investigators, experts, etc.) should be estimated with specificity (get a quote);
3. All travel costs.
Panel attorneys may watch two related MCLE training videos for more tips: "Writs, Applications & Motions in the Fifth District," and "Criminal Appeals and Extraordinary Writs in the Third District." (external link website is for panel attorneys only)
Petitions for writs of mandate and prohibition are used to request review of rulings made by the trial court during the course of criminal proceedings. One of the more common reasons for moving to expand an appointment order is to perfect the right to appeal, and in particular to compel the trial court to issue a certificate of probable cause.
The application should point out that, unlike a petition for writ of habeas corpus for which there is a form, the petition for writ of mandate is traditionally prepared by an attorney.
Counsel should estimate how much additional research and preparation time and is needed, and whether there are anticipated extraordinary expenses beyond typical expenses encountered copying and mailing the petition.
Please note, the Fifth District requires that all extraordinary writ petitions, other than habeas, but including writs of mandate, be submitted with a completed coversheet called, "Appellate Court Writ Petition Information Sheet." (Download the Information Sheet -- PDF)
Only a handful of certiorari petitions are filed in appointed cases each year, so it is an exceptional step. Expansion requests to file a certiorari petition should address whether there is a reasonable chance of cert. being granted. That means there must be a strong, well-preserved federal issue that has important societal implications.
In addition, if the same issue is currently pending before the high court, and/or if there is a split of authority, counsel should say so.
And, as with the other expansion requests, counsel should provide an estimate of how long it will take. Counsel should indicate whether some of the research and writing that went into the briefs on appeal will be applicable, as a cost-saving measure.
There is currently one exception to the expansion requirement. In light of the U.S. Supreme Court's grant of certiorari in Cunningham v. California (Apr. 18, 2005, A103501) unpublished opinion, cert. granted 2/21/06 (05-6551), both of our courts agreed not to require counsel to file the motion to expand the appointment if a cert. petition raising an Apprendi/Blakely/Cunningham issue could be prepared in 4.0 hours or less. Neither court has expressly revoked this permission.
And while many Apprendi issues had long been decided, it is still possible that some arise. One recent example is whether the discretionary imposition of lifetime sex offender registration increases the "penalty" for the offense within the meaning of Apprendi. (People v. Mosley (2010) 188 Cal.App.4th 1090, rev. granted 1/26/11, (S187965/G038379).) Another example is whether the juvenile court can constitutionally impose on a minor the sex-offender registration requirement set forth in Penal Code section 290.008 without giving the minor the right to a jury trial on the underlying facts? (In re S.W. unpublished opn., rev. granted 1/26/11, (S187897/G042321).)
But, if at any point before or during the preparation of the petition and related activity counsel believes that 4.0 hours may not be sufficient time to complete the petition for cert., a motion to expand should be submitted as soon as possible directly to the Court of Appeal. The expansion motion must include: 1) an explanation for the need for more time, and 2) an indication of how many hours are needed. The 4.0 hours includes not only the petition, but also the time for obtaining the In Forma Pauperis declaration from the appellant (required to avoid having to pay a filing fee for which counsel would not be reimbursed).
It is always a good idea to contact your CCAP buddy whenever you are considering pursuing a habeas issue before spending a lot of time on the subject to get the most current views of the court as to expansion requests, payment, and to get a read as to whether your buddy thinks it's a reasonable course of action.