Andres Santana v. Court of Appeal of California, Second Appellate District
ERISA DueProcess HabeasCorpus
1. is a California Penal Code §1237 (b) appeal from "any order made
after judgment, affecting the substantial rights of the party,"
a state created liberty interest under Board of Regents of State
(1972) 408 U.S. 564 ("Board of Regents"), and Colleges v. Rothif it is, is it a "parent right" under D.A.'s Office v7 Osborne
(2009) 557 U.S. 52 ("Osborne "), that begets yet other rights to
procedures essential to the realization of the parent right,
specifically, the right under People v. Wende (1979) 25 Cal. 3d
436 ("Wende "), of an appellant to file pro se supplemental con
tentions/brief when his appointed appellate counsel submits a
brief which raises no specific issues, but instead only summarizes
the proceedings in the trial court, i.e., a Wende brief?
2. If appellant's filing of pro se supplemental contentions/brief,
under Wende, is a begotten right essential to the realization
of a Penal Code §1237 (b) parent right of appeal, was the California
Court of Appeals refusal to file appellant's Wende pro se supplemen tal contentions/brief, because its records showed appellate counsel
remained appointed to the appeal--althogh California s framework,
in Wende appeals, will always show appointed appellate counsel
' appointed to the Wende appeal because Wende's procedure
calls for appellate counsel to not be relieved but to remain to
brief any issues the Court of Appeals deems proper-inconsistent
with the traditions and conscience of our people to challenge
appealed from judgments and orders and with California's recognized
principles in fundamental fairness in operation when appointed
appellate counsel files a Wende brief?
3. Did the California Court of Appeals violate Petitioner's right
to Equal Protection of the Laws when it refused to file his pro
se Wende brief because counsel remained appointed to his case,
thereby treating him differently from all other Wende appellants
whose pro se Wende briefs are not refused filing despite counsel
remaining appointed to their case?
4. When a state retroactively nullifies its felony murder statute
and retroactively redefines it, thus preventing the initial
presentation on direct appeal that a person does not meet its
new definition of felony murder, and creates a statutory regime
which explicitly calls for the claim to be presented in a frame
work which, replaces reinstating the first appeal as of right,
does the Smith v. Robbins (2000) 528 U.S. 259 ("Robbins "), right
to an "adequate and effective" appeal apply to the replacement
the state has created to the reinstatement of the first appeal
as of right?
5. Did the California Court of Appeals de facto suspend Petitioner's
Privilege to the writ of habeas corpus, in violation of Article I,
Section 9, Clause 2, of the U.S. Constitution, when it refused
to file his pro se Wende brief, given that such a refusal disallows
28 U.S.C. §2254 (b)(1)(A) exhaustion of state remedies which, in
turn,
Whether a California Penal Code §1237(b) appeal is a state-created liberty interest under Board of Regents, and if so, whether the right to file pro se supplemental contentions/brief under People v. Wende is a 'parent right' that begets other essential procedural rights