In re Grimes
Filed 10/24/06 In re Grimes CA4/1
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re DENNIS J. GRIMES on Habeas Corpus. | D048501 (San Diego County Super. Ct. No. SCD189996) |
PETITION for writ of habeas corpus challenging a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Petition denied.
Dennis J. Grimes filed, in propria persona, a petition for writ of habeas corpus challenging the trial court's pretrial orders prohibiting him from making telephone calls from jail. He apparently contends those orders violated his constitutional rights to self-representation, access to the courts, and due process because he was unable to effectively communicate with his private investigator and otherwise prepare for trial.[1]
However, Grimes does not submit or cite to any evidence outside the appellate record in his appeal in case no. D047240 and does not explain why he could not have raised his contention in that appeal. In In re Harris (1993) 5 Cal.4th 813, the Supreme Court stated:
"Proper appellate procedure thus demands that, absent strong justification, issues that could be raised on appeal must initially be so presented, and not on habeas corpus in the first instance. Accordingly, an unjustified failure to present an issue on appeal will generally preclude its consideration in a postconviction petition for a writ of habeas corpus. [In re Dixon (1953) 41 Cal.2d 756.] '[H]abeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment . . . .' (Id. at p. 759, italics added.; [citations].)" (In re Harris, supra, 5 Cal.4th at p. 829.)
Because Grimes does not argue, or show, that any of the very limited exceptions to the "Dixon rule" apply in his case, we conclude he cannot, in a petition for writ of habeas corpus, raise the contention that the trial court erred by issuing its pretrial orders prohibiting him from making telephone calls from jail. (In re Harris, supra, 5 Cal.4th at pp. 825, fn. 3, 829-841.)
DISPOSITION
The petition is denied.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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[1] We have considered this petition with Grimes's appeal in case no. D047240. For a discussion of the factual and procedural background of Grimes's case, please refer to our opinion in People v. Grimes (Oct. __, 2006, D047240).
