In re Ware CA5

Filed 1/27/23 In re Ware CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

In re F085376

KENNETH WARE, (Merced Super. Ct. No. SUF18418)

On Habeas Corpus. OPINION

THE COURT:* ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Kenneth Ware, in pro. per., for Petitioner. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent. -ooOoo- Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. (In re Benoit (1973) 10 Cal.3d 72, 81–82.) Respondent filed a response to the request stating that petitioner’s “allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)” Accordingly, we conclude petitioner is entitled to relief.

* Before Poochigian, A.P.J., Franson, J. and Snauffer, J.

DISPOSITION Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order in Merced County Superior Court action No. SUF18418. Let a writ of habeas corpus issue directing the Clerk of the Merced County Superior Court to file said request in its action No. SUF18418, to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives said request on or before 60 days from the date of this order. This opinion is final forthwith as to this court.

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