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News from the Director

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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