Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Tulare Co. S.Ct. No. VCF166946.
Steven Victor Palomino, in pro. per., for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Respondent.
Before Ardaiz, P.J., Cornell, J. and Hill, J.
On July 30, 2008, petitioner filed a petition for writ of habeas corpus seeking leave to file a belated notice of appeal.
On January 8, 2009, the Attorney General filed an informal response, pursuant to this court’s order of October 22, 2008, and did not contest that petitioner filed a notice of appeal, that the notice was erroneously deemed ineffective, and despite the denial of the certificate of probable cause, the appeal should have been deemed operational from the denial of his Penal Code section 1538.5 motion and the sentencing. Instead, the Attorney General asserted a belated appeal should not be granted because it would be frivolous.
A supplemental order was filed which asked the Attorney General whether, “Is it appropriate to deny petitioner a belated appeal based upon a review of the ultimate merits of that appeal? (Roe v. Flores-Ortega (2000) 528 U.S. 470, 487 ….” That order provided that, “The failure to file a supplemental informal response shall be deemed agreement that petitioner be granted a belated appeal.”
Roe v. Flores-Ortega, supra, 528 U.S. 470, held that a request for a belated appeal should not be denied based on the merits of the appeal.
The Attorney General did not file a supplemental informal response. Under the terms of the second order, this court may deem that failure to be “agreement that petitioner be granted a belated appeal.”
In light of this court’s order of October 22, 2008, the informal response filed by the Attorney General on January 8, 2009, the order filed on January 22, 2009, and the failure of the Attorney General to file a supplemental informal letter brief, this court deems there to be “agreement that petitioner be granted a belated appeal.”
DISPOSITION
Let a writ of habeas corpus issue directing the Superior Court Clerk of Tulare County to deem the pleadings dated November 21, 2007, and filed shortly thereafter, to be a notice of appeal limited to sentencing issues and the denial of his motion pursuant to Penal Code section 1538.5, to treat said notice as timely filed, to treat the appeal as being operative and to thereafter cause an appropriate record on appeal to be prepared, served on the parties and filed in this court.
Insofar as petitioner raises issues in addition to those decided above, the petition is denied without prejudice. Petitioner may seek the appointment of counsel in his appeal who can advise him regarding said issues.