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SOME MODEL STOGNER PLEADINGS
July 2, 2003
FDAP has prepared three model pleadings which can be used
in Stogner cases (Stogner v. California
(June 26, 2003) __U.S.__, 2003 WL 21467073, holding that
prosecutions under Penal Code §803(g) are unconstitutional
ex post facto laws when applied to offenses for which
the statute of limitations had run at the time section 803(g)
was enacted in 1994. The pleadings are attached to this
article and can be downloaded by clicking on the appropriate
icon below.
The model pleadings attached to this article are for Stogner
cases which are still pending on appeal. In the near
future we will address the question of cases in which the
appeals are over. They also just deal with all-or-nothing
cases, in which all the counts of conviction are
unconstitutional under Stogner. In the near future
we will address "mixed" cases in which some counts
are not affected by Stogner.
Please note: there are two fronts on which you may try to
get relief in Stogner cases pending on appeal: Superior
court and the Court of Appeal. The District Attorney
in at least one county already (San Francisco) has given
indications that their office is "entertaining"
habeas petitions in Stogner cases (i.e., if the case is
a clear Stogner case they will not be opposing the petition).
However, you should also beware that there is caselaw holding
that if an issue can be raised directly on appeal, the Superior
Court has no jurisdiction to consider a habeas petition
on that issue while the appeal is pending. Nonetheless,
it is possible that the D.A. will not interpose that objection,
and that the Superior Court might rule on the writ. Further,
in guilty plea cases pending on appeal, for the
reasons noted below a habeas petition in Superior Court
should be valid.
Thus, you should probably contact trial counsel to see if
counsel is willing/able to present a habeas petition; you
can draft the petition for counsel, based on the sample
habeas attached below, or file it yourself in that court.
However, it may also be possible that the Superior Court
in a particular county is not amenable to rapidly processing
a writ petition, or will rule that it has no jurisdiction;
thus, you might consider filing a motion for summary reversal
in the Court of Appeal instead of, or in addition to, filing
a writ petition in Superior Court.
The model pleadings attached to this article are:
(1) A motion for summary reversal in the Court of Appeal.
This may be the most expeditious way to handle the Stogner
case in the Court of Appeal. The motion for summary reversal
would, if granted, considerably speed up the appellate process
and bring relief far faster than presenting the issue in
a regular AOB and proceeding with the appeal in a normal
fashion. The attached model motion is an actual motion,
just filed on June 30th in the Court of Appeal. The motion
was filed because the trial counsel indicated that he might
be filing a habeas in Superior Court, but it was uncertain
whether and when that would be done. The appellate attorney
therefore covered her bases by quickly preparing and filing
a motion for summary reversal in the Court of Appeal so
that the appellate process would be expedited. She informed
the Court of Appeal that a habeas petition might be filed,
but that it was uncertain at this point. We will see what
the Court of Appeal does. The motion was just filed,
and the Court of Appeal immediately issued an order requiring
the Attorney General to respond in two days, and also asking
whether the Attorney General would waive oral argument and,
if the motion were granted, stipulate to an immediate issuance
of the remittitur. We do not yet know the Attorney General's
response.
Thus, we have a preliminary indication that the appellate
court is sensitive to the urgency of Stogner cases
and may be willing to act on them on a very expedited basis.
To down-load the sample motion for summary reversal, click
on one of the following icons (please note: if you file
this motion you must of course remove the case-specific
facts and insert the case-specific facts from your own case):
(2) A sample habeas corpus petition for guilty plea
cases pending on appeal; the petition can be filed either
in Superior Court or in the Court of Appeal. In guilty plea
cases, the ex post facto issue is cognizable on appeal,
and it is conceivable that there may be no clear remedy
on direct appeal because a certificate of probable cause
might be considered necessary (since the challenge would
undo the plea); in People v. Mendez (1999)
19 Cal.4th 1084 and In re Chavez (2003) 30 Cal.4th
643 the Court has held that once the 20-day deadline for
issuance of a certificate of probable cause has passed,
it is generally not possible to obtain a belated certificate.
In a guilty plea appeal we thus suggest using the habeas
route. (In guilty plea cases where the judge granted
a certificate of probable cause, it would be possible to
use the Motion for Summary Reversal procedure.) In guilty
plea cases also be aware that a victory means setting aside
the plea, and the appellant can then be charged with any
dropped counts that are so recent, or do not involve section
803(g), that they would not violate ex post facto considerations.
This must be discussed with appellant.
To down-load the sample guilty plea habeas petition for
the Superior Court, click on one of the following
icons:
To down-load the sample guilty plea habeas petition for
the Court of Appeal, click on one of the following
icons:
Please note that, as mentioned above, for non-guilty
plea cases the Superior Court may believe it does not have
jurisdiction to entertain such petitions, and thus you should
consider whether a motion for summary reversal in the Court
of Appeal is a preferable route. However, it is possible
that the D.A. may not oppose such a writ, and it is also
possible the Superior Court may act because it does believe
it has jurisdiction (or may simply not be aware of the issue).
Thus, you might want to consider having a habeas petition
in the Superior Court. To discuss the advisability of trying
this, please contact staff attorney Brad O'Connell in this
office.
FDAP will continue to keep you posted on Stogner
developments. (If you wish to print out this article, print
it out in landscape format.)
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