Opinion
D072255
09-15-2017
In re M.H. on Habeas Corpus.
Mary S., in pro. per, for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. CJ1266) Petition for writ of habeas corpus following an order terminating parental rights. Laura J. Birkmeyer, Judge. Petition denied. Mary S., in pro. per, for Petitioner. No appearance for Respondent.
BACKGROUND
Mary S. (Mother) appealed from an order terminating parental rights to her daughter M.H. under Welfare and Institutions Code section 366.26. In Mother's related appeal, we set forth the procedural and factual history underlying the termination of her parental rights. (In re M.H. (give date filed) D071780/D071900 [nonpub. opn.].) Mother filed the instant petition claiming ineffective assistance of counsel. We ordered that the writ be considered with the appeal. We grant Mother's request for judicial notice of the records in case Nos. D069687, D070934, D071705, D071780, D071900, and in San Diego County Superior Court Case No. CJ-001266. (Evid. Code, §§ 452, subd. (d), 459.)
DISCUSSION
"[A] parent in a dependency proceeding has a right to effective assistance of counsel and a right to seek review of claims of incompetence." (In re Carrie M. (2001) 90 Cal.App.4th 530, 535 (Carrie M.); Welf. & Inst. Code, § 317.5, subd. (a).) Ineffective assistance of counsel can be asserted as grounds for reversal in a habeas corpus petition filed concurrently with an appeal from a final order. (Carrie M., at pp. 533-534.) "The claim of ineffective assistance of counsel must relate to the order appealed from. [Citation.] Habeas corpus may not be utilized to challenge antecedent final orders." (Id. at p. 534.)
The habeas corpus petitioner bears a "heavy burden" to plead facts sufficient to warrant relief and to prove them. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To state a prima facie case for relief a petition must specify the facts upon which the petitioner is seeking relief and include copies of reasonably available documentary evidence supporting the claims. (Ibid.) " 'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.' " (Ibid.) To prevail on an ineffective assistance of counsel claim, the party must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that, but for counsel's failings, a different result would have been reasonably probable. (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)
"When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred." (People v. Romero (1994) 8 Cal.4th 728, 737.) "If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright, such dispositions being commonly referred to as 'summary denials.' " (Ibid.)
In her petition Mother claims she received ineffective assistance of counsel. She seeks return of M.H. to her control. Attached to her petition are numerous exhibits consisting primarily of e-mail correspondence, visitation incident reports and Agency records. We conclude that Mother has failed to set forth a prima facie case for relief. (People v. Duvall, supra, 9 Cal.4th at pp. 474-475.)
Mother also asserts that she is entitled to habeas relief based on forgery, perjury, harassment and threats, contempt of court, kidnapping and violations of numerous rules, statutes or the constitution. She requests that we order an investigation of her allegations. These claims appear to be based on incidents and documents filed during the course of the dependency proceedings. To the extent these claims relate to orders made in the dependency proceedings and are properly before us, they relate to antecedent final orders and are procedurally barred. (Carrie M., supra, 90 Cal.App.4th at p. 534.)
DISPOSITION
The petition is denied.
NARES, J. WE CONCUR: McCONNELL, P. J. BENKE, J.