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SELF-HELP FOR NON-LAWYERS IN NON-CAPITAL FELONY CRIMINAL, JUVENILE DELINQUENCY,
AND CIVIL COMMITMENT CASES

What these web pages cover:
These pages deal with appeals in California non-capital felony criminal, juvenile delinquency, and civil commitment cases.

Not covered here:
These web pages do not cover dependency cases, which have a separate Self-Help for Non-Lawyers in Dependency and Family Code Section 7800 Appeals and Writs. They do not cover other kinds of criminal appeals, such as death penalty appeals, misdemeanors and infractions (traffic violations), or cases in federal court or another state. They do not cover ordinary civil and small claims cases. Many of these types have different deadlines and rules.

Appellate Defenders, Inc. (ADI): ADI runs the system of court-appointed lawyers on appeal in cases from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties. The court tells ADI when an appeal is filed. ADI contacts you for any necessary information and helps the Court of Appeal select your lawyer once you have provided the information. In appeals from other counties, another district appellate project will do that.

 

GENERAL INFORMATION ABOUT AN APPEAL

ADI information: ADI's "Understanding Your Appeal - Criminal (PDF)" information form walks you through the usual stages of appeal. It is also available in Spanish (PDF). It is on the ADI Forms & Samples page under "Information for Clients About Their Appeal" on the list of forms, which is alphabetical. It covers such topics as:

  • What is an appeal?
  • Who will represent me on appeal and what does Appellate Defenders, Inc., do?
  • What can I expect to happen during the appeal?
  • How can I find out more about my appeal?

ADI Manual: The ADI Manual, though written for lawyers, provides information on a wide variety of topics that may be useful to non-lawyers trying to understand appeals.

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GENERAL QUESTIONS ABOUT AN APPEAL

  • STARTING: How can I start an appeal?
  • MY LAWYER: How can I get a lawyer to do my appeal?
  • DO IT YOURSELF? (1) Can I represent myself? (2) Can I file my own brief if I am represented by a lawyer?
  • SUPREME COURTS: My lawyer on appeal is not going to take my case to (1) the California Supreme Court or (2) the United States Supreme Court on issues that I lost in the Court of Appeal. What can I do on my own?
  • ANOTHER WAY TO GO - HABEAS CORPUS: I want to challenge my conviction, but I understand appeal is not an option. What can I do?
  • MAKE A FEDERAL CASE OUT OF IT? My state appeal is over. How can I get into federal district court to attack my conviction?
  • MORE! How can I get additional self-help information?

 

1. STARTING: How can I start an appeal?

You can appeal from the judgment (sentence) in a criminal case or other appealable judgments or orders. You can appeal certain limited matters after the sentence in a guilty plea case, too.

Filing a notice of appeal: An appeal is started by filing a notice of appeal. It must be filed in the superior court where the decision being appealed was made. The ADI Manual, chapter 2, sections 2.90 and on, and the Fourth District, Division One, Court of Appeal Starting a Criminal or Juvenile Delinquency or Dependency Appeal: Information Handout (external pdf link) discuss this process.

  • ADI notice of appeal forms: ADI has Notice of Appeal forms on its website. (Look under "Notice of Appeal Forms." The list is in alphabetical order.) The forms have instructions on when and where to file the notice of appeal. They have a place for requesting a court-appointed lawyer if you cannot afford to hire a lawyer. The ADI forms cover:
    • Criminal
    • Juvenile delinquency – (Welfare and Institutions Code, section 601 or 602.)
    • Extended civil commitment – Mentally Disordered Offender, Sexually Violent Predator, juvenile extended detention (Welf. & Inst. Code, section 1800 on)
    • LPS conservatorship
    • Not guilty by reason of insanity

  • These ADI forms are preferred – but not required – for cases from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties. The forms have a place for requesting a court-appointed lawyer if you cannot afford to hire a lawyer.
  • Notice of appeal forms for other areas of the state: For cases that took place outside of San Diego, Imperial, Riverside, San Bernardino, Inyo, or Orange County, it is best to use a different form from the ADI one. Ask your trial lawyer, a superior court clerk, or the district appellate project.
  • Judicial Council notice of appeal forms: You may use a Judicial Council Form, such as CR-120 (felony criminal case) or JV-800 (delinquency case).
  • Notice of appeal not on a form: You may make up your own notice of appeal, although that is not recommended. It must at least identify the decision you are appealing and be signed by you or your lawyer. In criminal guilty plea cases, other requirements apply – see rule 8.304 of the California Rules of Court. If possible, include the date of the decision you are appealing, the name of the judge, case numbers for all matters you want to include in the appeal, and other such details.

When to file a notice of appeal: CAREFUL – Strict 60-day filing deadline! You have 60 days from the decision you want to appeal to file a notice of appeal. This time limit is STRICT. (See California Rules of Court, rules 8.308 for criminal cases and 8.400(d)-(g) for delinquency cases.) Different rules and deadlines often apply to misdemeanors and infractions (traffic violations), civil cases, etc.

Where to file a notice of appeal: File a notice of appeal in the court where your trial or hearing took place. Ask the court clerk for assistance.

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2. MY LAWYER: How can I get a lawyer to do my appeal?

Hiring a lawyer: If you can afford to hire a lawyer, you must do that. The State Bar of California (all California lawyers are members) has a guide called How Can I Find and Hire the Right Lawyer? (external site link) Many County Bar Associations (lawyer groups) have lawyer referral services that help you find a lawyer with experience in these appeals.

Getting a court-appointed lawyer: If you cannot afford to hire a lawyer, you will usually be entitled to one appointed and paid by the court. Appellate Defenders, Inc. (ADI), runs the system of court-appointed lawyers in appeals from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties. In appeals from other counties, another district appellate project will do that.

  • What you need to do: The court usually needs a request for appointment of a lawyer and financial information from you. After the Court of Appeal tells ADI you have filed a notice of appeal, ADI will contact you and ask for the necessary information from you, if you did not provide it on the notice of appeal.
  • How a court-appointed lawyer is chosen: When ADI has the necessary information from you, ADI will help the Court of Appeal select your lawyer.

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3. DO IT YOURSELF? (1) Can I represent myself? (2) Can I file my own brief if I am represented by a lawyer?

(1) Representing yourself

Almost all persons going through the ADI program are represented by a lawyer. In the appeals covered by this web page (criminal, delinquency, civil commitment, etc.), a person unable to afford to hire a lawyer usually has the right to a lawyer appointed by the court at public expense. For this reason, self-representation is usually not an option. There is no constitutional right to represent yourself on appeal in a criminal case, as the United States Supreme Court held in Martinez v. Court of Appeal (2000) 528 U.S. 152.

(2) Filing your own briefs

If you are represented by a lawyer, your lawyer must file all briefs, motions, and most other documents on your behalf. For the most part, you do not have a right to file them yourself, as the California Supreme Court held in In re Barnett (2003) 31 Cal.4th 466. If you want to file a document on your own, first discuss this matter with your lawyer.

  • Except: You have a right to file a brief on your own, if your appointed lawyer has filed a brief saying no arguable issues could be found in the record. (This is called a Wende-Anders brief, or simply a Wende brief, in a criminal appeal.) Your lawyer and the court will tell you about this right and give you a due date. You may file either a brief or a letter. It should say what issues you want the court to consider. If the court thinks an issue is arguable, it will order your lawyer to brief it. The ADI Manual, chapter 4, section 4.73 and on, discusses these cases.

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4. SUPREME COURTS: My lawyer on appeal is not going to take my case to (1) the California Supreme Court or (2) the United States Supreme Court on issues that I lost in the Court of Appeal. What can I do on my own?

If your lawyer on appeal decides not to take your case any further after the Court of Appeal decision, you yourself will be responsible to go on.

(1) Petition for review in the California Supreme Court

If you lost your case, or part of it, in the California Court of Appeal, the next step is a petition for review in the California Supreme Court. Generally, the California Supreme Court will review only those issues you raised first in the Court of Appeal. A petition for review is necessary if you want to take federal issues into federal court, either the U.S. Supreme Court on appeal ("certiorari") or a federal district court on habeas corpus.

Information on petitions for review: Your appeal lawyer can provide information. Online sources of help include:

Sample petition for review: Another help is ADI's Petition for Review Template (PDF), which is a sample petition for review. For guidance, ask your lawyer and use the arguments made in the brief that your lawyer filed in the Court of Appeal.

(2) Certiorari petition asking for review by the United States Supreme Court

The odds of getting review (technically called writ of certiorari) granted in the U.S. Supreme Court are quite small, and in the great bulk of cases a petition is not filed. But you may file one if you wish.

Important things you must know

  • Limits on kinds of issues: When reviewing a state court decision, the U.S. Supreme Court can consider only issues that are federal. Generally, this means they are based on the U.S. Constitution.
  • Required steps in California state courts before going to the U.S. Supreme Court: You must take certain steps in the California courts first. Usually, an issue must be raised in the trial court to be considered on appeal. On appeal, you must clearly raise the federal issue (a) in the Court of Appeal and (b) then again in the California Supreme Court.
  • Due date: If you have raised the federal issues in the state courts and you now want to take those up to the U.S. Supreme Court, the petition for certiorari must be filed no more than 90 days after the denial of a petition for review by the California Supreme Court. (If the California Supreme Court granted review in your case, different deadlines apply. Check with your lawyer.)

Help

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5. ANOTHER WAY TO GO - HABEAS CORPUS: I want to challenge my conviction, but I understand appeal is not an option. What can I do?

About state habeas corpus: A petition for writ of habeas corpus is frequently used to challenge a conviction in California courts when appealing is not an option. Many habeas corpus proceedings are initiated by defendants acting in pro per (on their own, without a lawyer). The ADI Manual, chapter 8, discusses California habeas corpus and other kinds of writs, which are relatively rare in ADI cases.

Habeas corpus versus appeal: Generally, habeas corpus is used when you need to rely on facts not presented to the trial court. It is not available when the issues you want to raise were, or could have been, raised on appeal. Some exceptions apply, however, and sometimes habeas corpus can be used to get an appeal started if the deadline is past. Contact Appellate Defenders, Inc., if you lost your right to appeal through no fault of your own. Chapter 2 of the ADI Manual, section 2.113 and on, discusses this topic.

Form required: In a criminal case without a lawyer, a habeas corpus petition filed in a California state court (either superior court or an appeals court) generally must be on the Judicial Council petition for writ of habeas corpus form, MC-275. Follow the instructions carefully. The Judicial Council also has habeas corpus forms for mental health commitments: MC-265 (LPS) or MC-270 (commitments related to a criminal case: MDO, SVP, juvenile, not guilty by reason of insanity, incompetent to stand trial, prisoner transferred to state hospital, etc.).

Lawyer: There is no right to have a lawyer appointed to prepare a petition for a writ of habeas corpus, but if the court issues an "order to show cause" after you have filed your petition, then you can ask for a lawyer. An "order to show cause" means the court has found possible merit in your petition and wants a response from the government or other opposing party.

Where to file: Generally you should first file a habeas corpus petition in the superior court where the proceedings took place, if you are challenging those proceedings. The ADI Manual chapter 8, sections 8.15-8.17, discusses this topic.

Timeliness: Although there is no set time limit for filing a California habeas corpus petition, promptness is important. A court can decide not to consider your petition if you waited unreasonably long. Any significant delay should be explained. The ADI Manual, chapter 8, section 8.12 discusses this topic.

Guidance in preparing the petition:

  • Official court rules: California Rules of Court, rules 4.550-4.552 cover habeas corpus in the superior court. Rules 8.380-8.388 cover habeas corpus in the Court of Appeal and California Supreme Court (except for capital cases). Rule 8.380 specifically deals with petitions filed in pro per (without a lawyer) in the Court of Appeal and California Supreme Court.
  • Manual: In the ADI Manual, chapter 8, Appendix A, sections 8.84 and on have instructions. Section 8.19 and on of the ADI Manual discusses these petitions, as well. The Manual is written for lawyers. Although most of the instructions apply to petitions filed by prisoners, too, you must follow the instructions in the California Rules of Court or on one of the Judicial Council forms mentioned above (such as MC-275) when there is a difference. The rules for lawyer and pro per petitions are somewhat different.

After the petition: The ADI Manual chapter 8, sections 8.28 and on describe what happens after a habeas corpus petition is filed in the Court of Appeal. Proceedings in a superior court habeas case are similar, but not identical. Consult rules 4.550-4.552 and see sections 8.45-8.48 of the ADI Manual.

What if my petition in the superior court is denied? If your petition is denied in the superior court, you then can file a new habeas corpus petition (not an appeal) with the same issues in the Court of Appeal. If that is unsuccessful you may file a petition for review (or another habeas corpus petition) in the California Supreme Court. Consult with your lawyer or Appellate Defenders, Inc., when in doubt what to file. The ADI Manual chapter 8, sections 8.49-8.52, discusses the review process.

>>> CAREFUL!

  • Possible risks: Before filing a petition for habeas corpus, you should consider that a review of trial court proceedings carries a risk. If there were any errors in your favor in the trial court, they might be noticed and corrected – so that you end up worse off than when you started. Or, if you successfully attack your guilty plea, you may then lose the benefits gained by the plea bargain. (See the ADI Manual chapter 4, section 4.91 and on, for more detail on when this might happen.) You should ask for guidance from your trial or appellate lawyer.
  • One petition per case: Another thing to be careful about – under California law you are generally allowed only one habeas corpus petition to challenge a conviction for a particular case. That is called the "successive petitions rule." So you should raise all issues you want to raise in your first petition. A petition in the Court of Appeal, just asking for review of the superior court's denial of a habeas corpus petition, does not count as a "second" or "successive" petition. (See ADI Manual, chapter 8, section 8.10.)

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6. MAKE A FEDERAL CASE OUT OF IT? My state appeal is over. How can I get into federal district court to attack my conviction?

Manual: The ADI Manual, chapter 9, deals with federal habeas corpus.

Federal habeas corpus: If you are attacking a criminal conviction and have been unsuccessful in both the Court of Appeal and the California Supreme Court, you may decide to file a petition for a writ of habeas corpus in the federal district court where your conviction occurred. Remember that, when reviewing a state conviction, a federal court can consider only issues that are federal – generally, this means those based on the U.S. Constitution.

Required steps in California state courts before going to federal court: You must take certain steps in the California courts first. You or your lawyer must clearly raise the federal issue (a) in the California Court of Appeal and (b) then again in the California Supreme Court before it can be brought to federal court.

Form for petition: If you want to bring federal claims from your appeal and/or state habeas proceedings into federal court, ADI has links to the various California federal district court habeas corpus forms and instructions for filing a petition. They are on the ADI website Forms & Samples page near the bottom of the web page, under "Ninth Circuit."

>>> CAREFUL!

  • Strict due date: There generally is a STRICT time limit for filing a habeas corpus petition attacking a state judgment in federal court. From the day your petition for review in the California Supreme Court is denied, you have one year and 90 days to file a habeas corpus petition in federal court. (28 U.S.C. 2244(d)(1).) If the California Supreme Court granted the petition for review, ask your attorney or a Supreme Court clerk for the due date. Chapter 9 of the ADI Manual, sections 9.4 and on, deal with this time limit and a few exceptions to it.
  • One federal petition per case: Federal law tends to be even stricter than California law about "successive petitions." With few exceptions, it allows only one habeas corpus petition in federal court to challenge a particular conviction. So you should raise all issues you want to raise in your first federal petition. (See ADI Manual, chapter 9, section 9.79 and on.)

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7. MORE! How can I get additional self-help information?

Official rules and forms

Fourth Appellate District handout: The Court of Appeal, Fourth Appellate District, has a Starting a Criminal or Juvenile Delinquency or Dependency Appeal: Information Handout.

Clerks of the court: Clerk's offices can be very helpful. Court of Appeal and Supreme Court clerks can provide information about procedures in those courts. Superior court clerks can help you with notices of appeal and records.

Prison Law Office: Information about prison conditions and filing state and federal habeas corpus petitions can be found in the Prisoner's Handbook and other resources published by the Prison Law Office. These are available in many prison law libraries. The Prison Law Office also has a website.

 

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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.