A Methodology for Determining When To Seek Review
In the California Supreme Court In A Criminal Appeal
by Linnéa M. Johnson, CCAP Staff Attorney
with 2007 Rules of Court updates by CCAP Staff
After an opinion has been issued by the Court of Appeal in a criminal case, and counsel has determined that filing a petition for rehearing is not necessary, counsel must address whether a petition for review should be filed in California Supreme Court. For the experienced criminal appellate practitioner, the relevant considerations bearing on when a petition for review should be filed in the California Supreme Court are tactical as well as substantive.
The purpose of this article is twofold. First, this article will discuss the tactical reasons for filing a petition for review. It will include a discussion of the means of and necessity for exhausting state remedies in filing a petition for review solely for the purpose of preserving a potential federal habeas claim. It will also include a discussion of other tactical reasons for filing a petition for review. Second, this article will address the substantive considerations involved in filing a petition for review when appellate counsel truly seeks review of the issue on the merits. It will suggest a methodology the experienced appellate practitioner may use to assess the “importance” of an issue for purposes determining whether to file a petition for review in a criminal appeal. Finally, it is envisioned that an “assessment” performed pursuant to this suggested methodology will then provide the basis for the “Necessity of Review” section in any petition for review subsequently filed.
I. Tactical Considerations
For tactical reasons, a petition for review should be filed when there is a federal issue that must be preserved to enable the client to seek federal habeas corpus review. Prior to the Habeas Corpus Act of 1867, federal courts could not entertain habeas applications from state prisoners. (See Ex parte McCardle (1868) 73 U.S. [1 Wall.] 318, 325-26.) Due to continuing concerns for comity and federalism, state prisoners must exhaust all available state remedies before presenting their case to the federal courts. (28 U.S.C. § 2254(b).) Unless one of a few exceptions applies, a federal court must dismiss applications presenting unexhausted claims. (Rose v. Lundy (1982) 455 U.S. 509.) A court is also required to dismiss a mixed petition1, one that contains both exhausted and unexhausted claims, rather than rule on the exhausted claims. (Id.)2
Drafting Considerations in Preserving the Issue for Federal Habeas Corpus Review
The exhaustion requirement can be met by providing the state court with an opportunity to rule on the merits of each claim, or by showing that, at the time the application was filed in federal court, no state remedies were available to the petitioner and that s/he has not deliberately by-passed state remedies 3. (Batchelor v. Cupp (9th Cir. 1982) 693 F.2d 859, 862.) A claim is not “fairly presented” if presented for the first and only time in a procedural context in which its merits are subject to discretionary review unless “special and important reasons” exist. (Castille v. Peoples (1989) 489 U.S. 346.) This would appear to render the raising of the issue for the first time in a petition for review insufficient to meet the exhaustion requirement 4 .
This is because state remedies are not deemed exhausted until the federal claim has been fairly presented to the state courts,” and the highest state court has disposed of the claim on the merits. This means a petition for review must be filed, not that the California Supreme Court must have granted the petition for review and disposed of the issue on the merits. (See Picard, 404 U.S. at 275.) “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” (Ylst v. Nunnemaker (1991) 501 U.S. 797, 803.) Once the state supreme court has denied relief, it is not necessary to seek certiorari review in the United States Supreme Court to satisfy the exhaustion requirement. (Fay v. Noia (1963) 372 U.S. 391, 435-36, overruling in part Darr v. Buford (1950) 339 U.S. 200.)
Although the purpose of the exhaustion requirement, according to Preiser v. Rodriguez (1973) 411 U.S. 475, is to avoid the “friction between federal and state court systems that would result if a lower federal court could upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors,” the friction exists anyway. The Eastern District of California is bound to follow decisions of the Ninth Circuit Court of Appeals. However, in the state courts, decisions of the Ninth Circuit Court of Appeals are considered “persuasive” authority. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352, People v. Zapien (1993)4 Cal.4th 929, 989-990.) This means that a state court may render a decision in direct contradiction of an extant Ninth Circuit decision because it disagrees with it. However, on a habeas petition challenging the same conviction, the federal district court would be bound by the Ninth Circuit decision. Giving the state court an opportunity to correct such constitutional “errors” may well be a futile act in a practical sense. Nonetheless, this kind of “futility” should not be relied on to satisfy the “futility” exception to the exhaustion requirement.
Same Claim Requirement
While the wording of each claim does not have to be identical, the claim raised in state court must be “the substantial equivalent” of the claimed presented in the habeas application. (Picard, supra, 404 U.S. at 278. See also Rose v. Dickson (9th Cir. 1964) 327 F.2d 27, 29.) This means that the state court claim must have invoked the same federal constitutional violation, and the claim must be based on the same facts. (Pitchess v. Davis (1975) 421 U.S. 482, Anderson v. Harless (1982)459 U.S. 4, and Vasquez v. Hillery (1986) 474 U.S. 254.) The claim raised in the federal court must have been predicated on the same principles and subject to the same analysis as the federal claim. (Picard, supra, 404 U.S. at 270.)
A post-exhaustion intervening change in state law, which inures to petitioner’s benefit, does not require a return to the state courts to take advantage of the change. (Roberts v. LaVallee (1967) 389 U.S. 40, 42-43.)
Proper Presentation of Claims Requirement
Where state law provides alternative procedures for seeking post-conviction relief, petitioner need not exhaust each remedy. (Wilwording v. Swenson (1971) 404 U.S. 249, 250.) But the claims using the proper procedure must be presented at least once before petitioning the federal courts. (Smith v. Digmon (1978) 434 U.S. 332.)
While there were three basic exceptions to the exhaustion requirement 5 , counsel is well advised to use best efforts to satisfy the exhaustion requirement.
A petition for review may also be tactically necessary when a similar or identical issue is currently under California Supreme Court review or United States Supreme Court review in another case. By filing a petition for review, the “finality” of the opinion is delayed, which will permit the client to take advantage of any new opinion which benefits him or her and which is handed down before the petition for review is acted upon. It may also enable the California Supreme Court to accept the case on a “grant and hold” basis, which will prevent the appellate court opinion from becoming final before the California Supreme Court renders its opinion on the determinative issue. (Cal. Rules of Court, rule 8.512(d)(2).)
The decision to seek review for tactical reasons is a fairly straight-forward decision. Where the issue is being preserved for federal habeas corpus review, and there is no serious expectation that the court will grant review, the time dedicated to crafting the petition for review should reflect that objective. Similarly, the time devoted to a petition for review which only seeks to postpone finality for 60 days, or to be placed in the “grant and hold” category, need only be sufficient to apprise the court of the identity of issues between the case or cases it has under review, and the case which is the subject of the current petition for review.
Substantive Considerations: Assessing the Importance of the Issue
The considerations involved in seeking review based on the substantive merits of an issue are also easy to identify. Rule 8.500(b) of the California Rules of Court sets forth the conditions under which a petition for review may be granted:
- where it appears necessary to secure uniformity of decision or the settlement of important questions of law;
- where the Court of Appeal was without jurisdiction of the cause;
- where, because of disqualification or other reason, the decision of the Court of Appeal lacks the concurrence of the required majority of the judges; or
- where the Supreme Court chooses to transfer a matter to the Court of Appeal for further proceedings.
Clearly, it is the first choice, where the claim is of a need for uniformity of decision and/or the settlement of an important question of law, that most petitions for review are filed. However, whether any question of law is an “important” question of law is a much more difficult assessment to make.
The traditional thinking is that a petition for review of an opinion that is published stands a much greater chance of being granted. This is impliedly because the Court of Appeal has already certified, through publication, that it thinks the issue is an important one. Traditional thinking also suggests that where a published decision is in conflict with another published decision on the same issue, the chances of having a petition for review granted are enhanced, because the Courts of Appeal recognize an important issue, and are in disagreement as to how the issue should be resolved. 6 However, this cannot be the litmus test, because petitions for review of unpublished decisions are granted. So while the publication of an opinion may “enhance” the chances of a petition for review being granted, publication is not dispositive, and the lack of publication is not necessarily fatal.
How then, does the criminal appellate practitioner know when s/he has an issue worthy of review? And how does the criminal appellate practitioner assess whether the issue has a reasonable possibility of being granted? And how does the criminal appellate practitioner go about formulating the petition for review in the way most likely to yield review?
Moreover, how does the experienced appellate practitioner determine what issues the California Supreme Court thinks are important? To some extent, this can be known through an analysis of the California Supreme Court’s immediate past performance. To develop a sense of the California Supreme Court’s past performance, the criminal appellate practitioner should be acquainted with the issues in which review has been recently granted by the California Supreme Court. 7
Keeping abreast of Supreme Court action on petitions for review is similar to reading the advance sheets. The experienced appellate practitioner cannot wait until an opinion is issued to make this determination. It must be part of the appellate attorney’s “knowledge inventory.”
Once a “knowledge inventory” of cases pending review has been acquired, it is helpful to identify trends in California Supreme Court review by analyzing (1) the kinds of issues and cases in which review has been granted; (2) the kinds of cases and issues which yield published opinions from the California Supreme Court, and (3) the kinds of cases and issues which yield reversals by the California Supreme Court.
When considering whether to file a petition for review on the merits of a case, viewing the issue and the case in light of the trend analysis will better position the experienced appellate attorney to know whether to file a petition, and if a petition should be filed, whether it relates to or complements issues currently under review.
Another sure-fire way to find out what is on the California Supreme Court’s collective mind is to attend oral argument in criminal cases. The questions asked, and the issues on which the court focuses can serve as an indication of those areas in which the court has concerns.
While the California Supreme Court’s views of what issues are important are reflected through its recent performance, that is only one indication of what issues the court thinks are important. The importance of an issue must also be seen in context. With what other kinds of issues must this issue compete for the court’s attention? And with how many other issues must this issue compete for the court’s attention?
Finally, the experienced appellate practitioner should perform his or her own assessment of the importance of the issue. Is there a grave appellate court error which will effect many litigants? (See People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674-676.) Is it a question of first impression nationally? (See Carsten v. Psychology Examining Commission (1980)27 Cal.3d 793, 795.) Does the case involve differences between California common law and the common law of other states? Does the case involve differences between California law and treatises or restatements?
Is there general interest in the legal issue? Can you marshal amicus support? Are there statistics available from other sources which demonstrate the frequency with which the issues will recur? (See Vasquez v. Superior Court (1971) 4 Cal.3d 800, 817, fn. 14.) Are there other cases, locally or nationally, that involve the same issue?
How does the issue impact the administration of justice in the California Courts? (See Solberg v. Superior Court (1977) 19 Cal.3d 182 or American Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578.)
Is the issue fully developed so that this is the proper case for the Supreme Court to decide this issue? Was the Court of Appeal opinion unanimous?
It is the “assessment” of the answers to these questions, as well as the assessment performed pursuant to this suggested methodology, that will provide the basis for the “Necessity of Review” section in any petition for review subsequently filed.
1. If petitioner proceeds on only the exhausted claims, petitioner will run the risk of forfeiting his right to raise the unexhausted claims in a subsequent application. Under R. Gov. 2254 Cas. 9(b), a district court could dismiss subsequent petitions if it found that the failure of the petitioner to assert these new grounds constituted an abuse of the writ. (Sanders v. United States (1963) 373 U.S. 1.) For example, the introduction of new evidence at a federal habeas hearing that was not advanced in state court resulted in dismissal of the habeas petition because the exhaustion requirement was not satisfied. (Aiken v. Spalding (9th Cir. 1988) 841 F.2d 881.)
2.Following dismissal, petitioner may either go back to state court and exhaust the unexhausted claims, or may file a new application raising only the exhausted claims. However, dismissal may not always occur. Many commentators acknowledge that exhaustion is a procedural and not jurisdictional requirement, and imply that the distinction is unimportant. In Granbeny v. Greer (1987) 481 U.S. 129, the supreme court refused to allow the failure to exhaust state remedies to deprive it of federal court jurisdiction. On appeal from the denial of a writ, the State of Illinois raised the exhaustion issue for the first time. The court held that when a petitioner’s claim presents an unresolved question of fact or state law, the petition should be returned to the state courts for exhaustion; if the claims is frivolous, the district court should simply deny the petition; and if the petition is meritorious and the district court has already held a full trial, then the court may grant the writ without requiring the petitioner to exhaust state remedies.
The Ninth Circuit claims jurisdiction to consider unexhausted claims in a mixed habeas petition if those claims “clearly do not rise to the level of alleged deprivations of constitutional rights.” This is because courts have “understandably denied unexhausted claims that are meritless in order to reach the merits of more compelling claims that were exhausted.” (Acosta-Huerta v. EstelIe (9th Cir. (1992) 7 F.3d 139.) The Ninth Circuit has also held that where the state fails to raise the exhaustion defense to the federal habeas action in the district court, the state waives it. (Brown v. Mass (9th Cir. 1993)11 F.3d 914,915.) However, under the new federal habeas law, 28 U.S.C. § 2254(b)(3), the only way exhaustion can be waived is expressly and through counsel.
3. Under the new federal habeas law, 28 U.S.C. § 2254(b), a writ cannot be granted unless the applicant shows that s/he has exhausted state remedies, or that no available state corrective process exists, or that circumstances exist that render such process ineffective to protect the rights of the applicant.
4. The Ninth Circuit has construed California Rule of Court rules 8.500, 8.504 & 8.512 to mean that a petition for review filed after May 6, 1985, denied without opinion, exhausts only those issues raised in the petition for review that are also both raised in the appellant’s brief and mentioned in the court’s opinion, or brought to the court’s attention in a petition for rehearing. (McQuown v. McCarthy (9th Cir. 1986) 795 F.2d 807, 809, and Roman v. Estelle (9th Cir. 1990) 917 F.2d 1505.) The appellate court must also deal with the claim on substantive rather than procedural grounds, or only the procedural issue is exhausted.
This would suggest an additional reason for filing a petition for rehearing other than the mistake of law or fact referred to in rule 8.500(c)(2) of the California Rules of Court, which is a prerequisite to obtaining review in the California Supreme Court. A federal constitutional issue raised in the appellant’s opening brief and not addressed the appellate court’s opinion would not be exhausted and therefore federal habeas corpus relief would not be available.
5. The three exceptions to the exhaustion requirement, recognized before the new federal habeas law was enacted, had to be affirmatively alleged, and, where necessary, bolstered by evidentiary materials. The three exceptions were: (1) where state remedies are unavailable, (2) where state remedies are futile, and (3) where state courts take an inordinate length of time to dispose of appellant’s claims. The extent to which these exceptions will be embraced under the new habeas law, which excuses exhaustion where the state process was ineffective to protect the rights of the applicant, is unclear.
6. When a conflict between the district courts of appeal is argued as a basis for granting review, it is helpful to indicate the age of the conflicting case, the basis for the conflicting case, and the apparent degree to which other courts have followed the conflicting case.
7 . The easiest way for counsel to access this information is through CCAP’s Web page: Simply click on the High Court Activity button , and select either the California Supreme Court or United States Supreme Court link to view the cases and issues pending review. This article is updated weekly.