Q: If a post conviction habeas is filed with the court and the DA defaults, what would be the petitioner’s remedy?
A habeas corpus was filed with the superior court challenging the validity of the petitioner’s prior convictions for strike purposes. The court ordered a response by the DA and upon attempting this response the DA discovered that the petitioner’s sentencing transcripts no longer existed in the archives. After several extensions the DA attempted to locate the sentencing transcripts to no avail, preventing him to prove a knowing and intelligent waiver of petitioner’s admission to the alleged priors. The DA being unable to respond defaulted but no judgement was entered by the court. It’s been several weeks since this default, what would be the petitioner’s recourse and how do we get the judge to enter a default judgement?
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- California
- (916) 704-3009
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- Answered
A:
Under California law, if a district attorney fails to file a timely response to a habeas corpus petition after being ordered to do so by the court, the petitioner may be entitled to relief. In this case, the petitioner's recourse would be to file a motion for default judgment with the court.
Here are the steps the petitioner can take:
1. File a motion for default judgment: The petitioner should file a motion with the court, requesting that a default judgment be entered in their favor due to the DA's failure to respond to the habeas corpus petition.
2. Provide proof of the DA's default: In the motion, the petitioner should present evidence that the DA has failed to respond within the time frame set by the court, despite being ordered to do so.
3. Request the appropriate relief: The petitioner should ask the court to grant the relief sought in the habeas corpus petition, such as striking the prior convictions for sentencing purposes.
4. Serve the motion on the DA: The petitioner must ensure that a copy of the motion for default judgment is properly served on the district attorney's office.
5. Attend the hearing: If the court schedules a hearing on the motion for default judgment, the petitioner or their attorney should attend and argue in favor of granting the motion.
It is ultimately up to the court to decide whether to grant the motion for default judgment. If the court grants the motion, it may enter a judgment in the petitioner's favor, striking the prior convictions for sentencing purposes. If the court denies the motion, the petitioner may need to explore alternative legal options, such as appealing the decision or filing a new habeas corpus petition in a higher court.
It is essential for the petitioner to consult with an experienced criminal defense attorney who can provide guidance on the specific steps to take in this case and help ensure that the petitioner's rights are protected throughout the process.
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