Rule 8.385. Proceedings after the petition is filed

(a) Production of record Before ruling on the petition, the court may order the custodian of any relevant record to produce the record or a certified copy to be filed with the court. Sealed and confidential records are governed by rules 8.45-8.47.

(b) Informal response

(1) Before ruling on the petition, the court may request an informal written response from the respondent, the real party in interest, or an interested person. The court must send a copy of any request to the petitioner.

(2) The response must be served and filed within 15 days or as the court specifies. If the petitioner is not represented by counsel in the habeas corpus proceeding, one copy of the informal response and any supporting documents must be served on the petitioner. If the petitioner is represented by counsel in the habeas corpus proceeding, the response must be served on the petitioner’s counsel. If the response is served in paper form, two copies must be served on the petitioner’s counsel. If the petitioner is represented by court-appointed counsel other than the State Public Defender’s Office or Habeas Corpus Resource Center, one copy must also be served on the applicable appellate project.

(3) If a response is filed, the court must notify the petitioner that a reply may be served and filed within 15 days or as the court specifies. The court may not deny the petition until that time has expired.

(c) Petition filed in an inappropriate court

(1) A Court of Appeal may deny without prejudice a petition for writ of habeas corpus that is based primarily on facts occurring outside the court’s appellate district, including petitions that question:

(A) The validity of judgments or orders of trial courts located outside the district; or

(B) The conditions of confinement or the conduct of correctional officials outside the district.

(2) A Court of Appeal should deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner’s suitability for parole if the issue was not first adjudicated by the trial court that rendered the underlying judgment.

(3) If the court denies a petition solely under (1), the order must state the basis of the denial and must identify the appropriate court in which to file the petition.

(d) Order to show cause If the petitioner has made the required prima facie showing that he or she is entitled to relief, the court must issue an order to show cause. An order to show cause does not grant the relief sought in the petition.

(e) Return to the superior court The reviewing court may order the respondent to file a return in the superior court. The order vests jurisdiction over the cause in the superior court, which must proceed under rule 4.551.

(f) Return to the reviewing court If the return is ordered to be filed in the Supreme Court or the Court of Appeal, rule 8.386 applies.

(g) Appointment of counsel

(1) If the return is ordered to be filed in the Supreme Court or the Court of Appeal, the court in which the return is ordered filed must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel.

(2) When a petition raises a claim under Penal Code section 745(a) and requests appointment of counsel, the court must appoint counsel if the petitioner cannot afford counsel and either the petition alleges facts that would establish a violation of section 745(a) or the State Public Defender requests that counsel be appointed. Newly appointed counsel may amend a petition filed before their appointment.

Committee Notes

(Subd (a) amended effective January 1, 2014.)

(Subd (b) amended effective January 1, 2016; previously amended effective January 1, 2014.)

(Subd (c) amended effective January 1, 2012.)

(Subd (f) was amended effective September 1, 2024.)

(Subd (g) was adopted effective September 1, 2024.)