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Weekly Appellate Report #27

By Brian Cardile | Nov. 11, 2016

Appellate Practice

Nov. 11, 2016

Weekly Appellate Report #27

Benjamin Shatz (Manatt) reviews Monday's CASC habeas ruling in Maas v. Superior Court, an appeal the court heard on its own motion; David Balabanian (Morgan, Lewis & Bockius) offers advice on how to write your best brief

On today's show Benjamin Shatz, of Manatt, Phelps, & Phillips' appellate practice group, will visit to discuss this Monday's state high court ruling in Maas v. Superior Court, which, by clarifying a section of the Code of Civil Procedure, ensures a habeas corpus petitioner the right to peremptorily disqualify an assigned judge, should the petitioner believe the judge to be prejudiced as to the matter.

Here, the petitioner, Michael Eugene Maas, challenged a 25-years-to-life sentence based on ineffective assistance of counsel claims. While his petition was pending in a California superior court, Maas inquired repeatedly as to the identity of the judge assigned to decide whether the petition stated a prima facie habeas claim. But Maas only discovered the judge's identity, Judge John M. Thompson of the San Diego Superior Court, when Maas learned that Johnson had summarily denied his petition. Appealing the denial, Maas contended he would have used a peremptory challenge, under Cal. Code of Civil Procedure 170.6, to disqualify Johnson, and that the court's failure to notice him of Johnson's identity prior to the summary denial was improper.

An appellate panel agreed but then, in a uncommon procedural twist, the California Supreme Court, on its own motion, absent an appeal from either side, decided to review the court of appeal's ruling. While traditional wisdom suggested the high court must have been more likely than not disapproving of the intermediate court's holding, in fact the court rendered an affirmance Monday, clarifying that Section 170.6 indeed entitles individuals the right to know the identity of the judges deciding their habeas petitions, and the right to, at least once, disqualify them for prejudice. Mr. Shatz discusses how this impacts both habeas corpus jurisprudence, but also appellate attorneys more generally, who should be mindful of the power reserved by the California Supreme Court to grant sua sponte review of seemingly settled appeals.

Then, we'll hear an encore presentation of appellate practice wisdom from Morgan Lewis and Bockius partner David Balabanian. Mr. Balabanian's opinion columns appear regularly in the Daily Journal and regard all manner of appellate best practices. In this segment, we'll focus on brief writing; he'll describe some common pitfalls encountered by appellate attorneys in this context, and the best ways to include both helpful and unhelpful precedent in your brief.

Don't forget one hour of CLE credit is available for listeners. Find the link below to complete a short true/false test pertaining to this episode to receive credit.

Have questions about the show? Criticisms? Ideas for segments? I'd love to hear them, at

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Brian Cardile

Rulings Editor, Podcast Host, 9th U.S. Circuit Court of Appeals reporter

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