Filed 11/17/17 In re Moreno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TONY MORENO,

On Habeas Corpus.
F075936

(Fresno Super Ct. No. F14904811)

OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Tony Moreno, in pro. per., for Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler and Michael P. Farrell, Assistant Attorneys General, Tami M. Krenzin and Max Feinstat, Deputy Attorneys General, for Respondent.
-ooOoo-
Petitioner seeks leave to file a belated notice of appeal from his sentence that was rendered on March 24, 2017, in Fresno County Superior Court action No. F14904811.
On July 18, 2017, this court issued an order granting the Attorney General leave to file a response to the petition. The order stated that the failure to file a response would be deemed agreement that petitioner should be granted a belated appeal.
On September 15, 2017, the Attorney General filed an informal response. With respect to petitioner’s request for a belated appeal from the sentence imposed on March 24, 2017, the informal response stated, “respondent does not oppose the petition as he appears to have made a prima facie case for ineffective assistance of counsel. (See Roe v. Flores-Ortega (2000) 528 U.S. 470, 478.)” Respondent is correct because petitioner asserts under penalty of perjury that he did not know he could file an appeal, he was never so informed by his attorney, and he “just found out of this in prison.”
The informal response opposed granting petitioner a belated appeal from his original conviction and sentence in May 2016 because petitioner did not make any effort to excuse his delay. Respondent is correct. (In re Anderson (1971) 6 Cal.3d 288.)
DISPOSITION
The Clerk/Administrator of this court is authorized to send a copy of the notice of appeal and request for a certificate of probable cause attached to the petition in the above entitled action to the Clerk of the Fresno County Superior Court.
Let a writ of habeas corpus issue directing the Clerk of the Fresno County Superior Court, upon receipt of the notice of appeal and request for a certificate of probable cause, to file said notice of appeal in Fresno County Superior Court action No. F14904811, to deem said notice of appeal to be timely filed only from the sentence that was imposed on March 24, 2017, and to proceed with the preparation of the normal record on appeal in accordance with this opinion and the applicable rules of the California Rules of Court.
Insofar as petitioner may be requesting a belated appeal from his conviction and sentencing in 2016, his request is denied without prejudice. (In re Anderson (1971) 6 Cal.3d 288.)
Insofar as this petition may be challenging the conviction and sentence in 2016 on habeas corpus, said petition is denied without prejudice. Petitioner’s challenges are conclusional and not supported by a record. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; In re Sterling (1965) 63 Cal.2d 486, 487; In re Lindley (1947) 29 Cal.2d 709, 723.)