HIGHLIGHTS OF RULES OF COURT AMENDMENTS EFFECTIVE JANUARY
1, 2004, INCLUDING MODIFIED PROCEDURES FOR EXHAUSTION PETITIONS
FOR REVIEW AND WORD-LIMITS FOR COURT OF APPEAL BRIEFS.
December 17, 2003
Many amendments to the rules of court are effective January
1, 2004. Most of the amendments relevant to criminal and
dependency appellate practice are summarized in the attached
and some highlights are noted directly below. But keep in
mind that there has been a major overall of the rules governing
criminal appeals. (New Rules 30-36.3; Former Rules 30-38.).
Many things have been renumbered or revised, and the chart
does not describe all changes.
Some of the amendments will be discussed at the FDAP
seminar on January 24. But it's not too soon to note
some changes which will affect all briefs filed after January
1, 2004, less than three weeks from now. Of the changes
noted below, the new provisions regarding Court of Appeal
brief length and certificates (New Rule 33(b)) and Exhaustion
Petitions for Review (New Rule 33.3) might generate the
most interest and concern.
Brief length and Certificates.
Under New Rule 33(b), all computer-produced Court
of Appeal briefsincluding AOB's, RB's, Replies, and
Rehearingnow have a 25,500 word-limit, including
footnotes, but excluding tables, the word-count certificate,
and any attachment permitted by rule 14(d). Every brief
must include a certificate, signed by counsel, stating
the number of words. (Rule 33(b).) The certificate can be
in the same form as the certificates for petitions for review.
In a somewhat related change, the rule requiring certificates
for petitions for review (and answers and replies) has been
renumbered 28.1(d). If you cite the rule in your form certificate,
cite 28.1(d) (instead of 28.1(e)).
Exhaustion Petition for Review. (New Rule
33.3.) An appellant may file an abbreviated petition for
review where the issues don't qualify for review under Rule
28(b), but the petition is necessary to exhaust state remedies
in order to preserve issues for federal habeas review.
"Petition for Review to Exhaust State Remedies"
must appear on the cover of the petition.
Petition need not comply with 28.1(b)(1) (questions presented)
& (b)(2) (explanation of how case presents a ground
for review under 28(b)).
Petition must include: "(A) a statement that the case
presents no grounds for review under rule 28(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." (New Rule 33.3(b)(3).)
Petition need not be served on superior court. (New Rule
Original and 8 copies only.
CAVEAT: None of this changes how federal courts define what
is adequately exhausted.
Normal Record Missing (Former Rule 35(e) Requests).
While the procedures haven't change, the rule number has.
Rule 35(e) requests are now 32.1(b) requests. Practice
until it rolls off your tongue: "32.1(b) request, 32.1(b)
request, 32.1(b) request, 32.1(b) request, 32.1(b) request,
32.1(b) request, 32.1(b) request."
In Court of Appeal, answers to petitions for rehearing are
not permitted unless ordered by court. Rule 25(b)(2).
Court may grant relief from default for the late filing
of a petition for rehearing. Rule 25(b)(4).
Answers to petitions for rehearing may be filed in Supreme
Court cases without court order.
Abandonment. We no longer voluntarily "dismiss"
appeals, we voluntarily "abandon" them. Rule 30.3(a).
Certificate Appeals. Now governed by Rule
30(b). (Former Rule 31(d).)
31(d) appeals are now 30(b) appeals.
Under new Rule 30(b)(1) defendant must file both an NOA
and a CPC statement. A CPC request no longer does double-duty
Under new Rule 30(b)(3), a certificate appeal is inoperative
(and must be so marked by the superior court clerk) if there
is no certificate statement or if the judge denies the CPC.
Clerk must given notice to defendant and send copy of statement
to appellate project.
Under New Rule 30(c)(1), in case of a certificate appeal,
clerk may not notify reporters and COA of filing of noa
unless court grants certificate.
Documents Supporting Habeas Corpus Petitions.
Tabbed and paginated exhibits. Under new Rule 56.5(c)(4),
documents supporting habeas petitions are now governed by
rule 56(d), which requires tabs and "consecutive pagination
throughout." Tabbing and Bates-stamping the exhibits
will be cumbersome, both because of the extra brief-production
time and because of the need to insert citations in the
petition after the Bates-stamping. The rule, however, requires
the clerk to file the petition even if it is not in compliance.
(Rule 56(d) ("The clerk shall accept for filing petitions
and supporting documents not in compliance with this subdivision;
but the court may give the petitioner notice requiring that
the petition and documents be brought into compliance within
a stated reasonable time, or the petition may be stricken
or denied summarily.") Consideration might be given
to foregoing the consecutive pagination throughout the entire
volume of exhibits. If tabs are used and if each individual
exhibit is internally paginated, it seems unlikely that
the court would reject the exhibits.
The Court only requires one copy of the exhibits.
As a practical matter, where the exhibits are in a volume
separate from the petition, it makes sense to follow this
rule. But, if the exhibits are attached directly to the
petition, it makes sense to include copies of the exhibits
in all copies of the petition.
Changes in Number of Copies for Supreme Court
filings (Rule 44(b)(1):
Normal Petition for Review, Answer, & Reply (13 copies)
Exhaustion Petition for Review, Answer, & Reply (8 copies)
Merits Briefs (13 copies)
Original Petitions (including Habeas) (10 copies)
For more details on the amendments click here
to see the chart summarizing the changes.