Legal Question in Appeals and Writs in California

Filing opposition to motion to dismiss...

Hello,

I am helping an indigent state prisoner, who was wrongfully convicted, with their appeal process.

I managed to complete and file a federal habeas petition before the 1 year AEDPA statute expired. The challenge now being that the court-appounted appellate counsel that handled the initial appeals with the state demonstrated such egregious deficiencies that none of the real issues ever got developed and raised with the state courts.

The ineffective assistance of appellate counsel in the only avenue towards getting the feds to allow the new claims to be raised. The problem is that the AG gets an opportunity to file a motion to dismiss before it ever gets close to a federal judge looking at the merits and ruling on them. Therefore, I anstisipate that the AG will indeed file an motion to dismiss for failure to exhaust. I expect that though I cannot even find an example of an "opposition to the motion to dismiss" - any info as to the content?


Asked on 9/01/00, 8:53 pm

1 Answer from Attorneys
Steven Murray Steven W. Murray, APC

Re: Filing opposition to motion to dismiss...

An opposition to a motion in an appellate court is

simply a brief. Take a look at any Appellee's brief

in a 9th Cir. case. Better yet, call the clerk

at the Motions Panel/Dept. of the 9th Cir. and ask

where you can get a copy of an opposition to a

motion to dismiss in some other case.

You might consider filing a legal malpractice case

against the former defense atty. Resolution of that

could include a statement/admission that your claims

are true, or a stipulation to file with the federal

authorities. You don't always have to sue for money.

And if you do sue and win, that issue may be a

collateral estoppel on the issue in the habeus proceeding.

Read more
Answered on 10/04/00, 2:39 pm


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