Andrade v. Lake County District Attorney

Background

Silvia Andrade filed a self-represented petition under 28 U.S.C. § 2254 challenging her misdemeanor conviction. The court had previously dismissed all claims except an ineffective-assistance-of-counsel claim and had ordered the respondent to show why relief should not be granted on that claim.

The Lake County District Attorney had initially been named as respondent. The court dismissed the District Attorney from the case and substituted Rob Howe, identified as the Lake County Chief Probation Officer. Howe’s attorney, the Office of the Lake County Counsel, then filed the motion to dismiss at issue here.

Motion to Dismiss

Howe argued that he could not be sued because Andrade did not allege that he personally committed misconduct or had any involvement in selecting her defense lawyer, prosecuting the case, or defending it before sentencing. He also argued that the petition was untimely.

The court denied the motion to dismiss.

Proper Respondent

The court explained that the proper respondent in a petition under § 2254 is generally the state official who has custody of the petitioner. Usually, that is a prison warden. When a petitioner is on supervised release or probation, however, the appropriate respondent may be the probation officer or another official in charge of the probation or parole agency.

Assuming Andrade was on probation when she filed the petition, as she alleged, the court held that Howe was the correct respondent. The court stated that this did not depend on whether Howe participated in Andrade’s trial or in choosing her attorney.

Timeliness

The court explained that California misdemeanor appeals follow a different process from felony appeals. A defendant first appeals to the superior court’s appellate division. If that court affirms the conviction, the defendant may seek certification for transfer to the California Court of Appeal or ask the Court of Appeal to accept the case directly. If transfer is denied, the denial is immediately final, and the misdemeanor conviction becomes final for federal habeas-timing purposes 90 days after that denial.

Howe relied on the dates when Andrade’s state habeas petitions were denied. The court concluded that those dates were not the relevant dates for determining when Andrade’s misdemeanor conviction became final. Because the record before the court did not establish the dates of the relevant direct-appeal proceedings, the court could not determine whether the petition was untimely. It therefore denied the motion to dismiss on timeliness grounds.

Orders

The court ordered Howe and the Office of the Lake County Counsel to send a courtesy copy of the order and petition to the California Attorney General. It ordered Howe to file and serve an answer within 45 days, complying with Rule 5 of the Rules Governing Section 2254 Cases and including previously transcribed, relevant portions of the state-court record. Andrade may file and serve a written response within 30 days after receiving the answer.

The court also instructed Andrade to prosecute the case, keep the court informed of address changes, and serve the respondent’s counsel with her court communications. The order terminated docket number 19. It did not decide the merits of Andrade’s ineffective-assistance claim.