Court Appointments

Procedures for Recruitment, Qualification, and Appointment of Counsel in Capital Habeas Corpus Proceedings

Historically, the California Supreme Court appointed counsel to indigent persons for capital post-conviction proceedings. See In re Anderson (1968) 69 Cal.2d 613, 633. This process was changed by Proposition 66, passed by California voters in 2016, and corresponding newly-adopted Rules of Criminal and Appellate Procedure. The new statutes enacted by Proposition 66, and the corresponding rules of court, are cited below.

Relevant Statutory Provisions

Penal Code section 1509(b) and Government Code section 68662 require trial courts to offer and, unless the offer is rejected, appoint habeas corpus counsel for indigent death-sentenced individuals.

Government Code section 68665 was modified to require the Judicial Council and Supreme Court to reevaluate the mandatory competency standards for appointment of counsel to capital habeas corpus proceedings as needed to ensure that they provide for competent representation, do not unduly restrict the available pool of attorneys, meet the standards necessary to qualify California to opt in to Chapter 154 of title 28 of the United States Code, and do not limit qualifying experience to defense experience.

Relevant Court Rules

The Judicial Council recently promulgated new rules of court, as required by Proposition 66, which prescribe a new procedure for the appointment of qualified capital habeas corpus counsel in the superior courts. This procedure includes establishing a state-wide panel of qualified capital habeas corpus counsel. This panel will be established by Regional Committees, which will be formed and organized by the Presiding Justices of each of the six Appellate Districts, pursuant to Rule 4.562. The Regional Committees will accept applications from attorneys, within their respective appellate districts, who seek an appointment in a capital habeas corpus matter. The First Appellate District committee will accept and process applications from individuals whose principal place of business is located out-of-state.

The Regional Committees will review each application and enroll on the statewide panel all applicants who meet the state-wide qualification standards, set out in rule 8.652. Unless removed by a Regional Committee at an earlier date, qualified counsel will remain on the state-wide panel for six years, after which they may submit a new application. The Habeas Corpus Resource Center (HCRC) will maintain the state-wide list of qualified counsel on its website, updated quarterly.

Rule 4.561 requires that counsel be appointed to the death penalty-related habeas corpus cases with the oldest judgments first, and prescribes the procedures by which these appointments are to be made.