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How is the process initiated?
A habeas
corpus proceeding is initiated in state court by filing an application
for writ of habeas corpus. The application must be filed in the court
where the defendant was convicted and sentenced.
The writ is issued by
the clerk's office, and is actually an order to the Sheriff or warden
to show cause why they are holding an individual. The application is
usually delivered to the District Attorney, who then files a response.
Is a response necessary?
The statute
requires a response to the filed within 15 days after the writ has
served. However, there is no sanction for failing to file a response.
Many times extensions will be obtained to file a response. Despite what
you would think, the failure to file a response is not always
beneficial.
The statute provides that if no response is filed, it is
presumed the State denies all the allegations in the writ.
When can a writ be filed?
Because habeas
corpus involves an attack on a final conviction, it cannot be filed
until all the appeals have been decided. As long as an appeal is
pending, the conviction is not final. The statute also requires a
person to be in custody when the application is filed.
Once a sentence
is served, habeas corpus is generally no longer available. For the same
reason, habeas corpus is not generally available to a defendant who is
on probation.
What is the relationship between habeas
corpus and an appeal?
Habeas corpus cannot take the place of an appeal,
and therefore most issues must be raised on direct appeal. There are
also several reasons for doing so. The most important one is that the
standard of review is more lenient on direct appeal, than on habeas
corpus. Relief can be obtained on a direct appeal where there is an
error that contributes to a conviction or sentence.
In many cases, the
burden is on the state to prove the error was harmless. In habeas
corpus, the burden shifts to the defendant to establish harm. The
standard is different, in that a defendant must show a substantial
injury which requires more than establishing the error was harmless.
Another reason is that more issues can be raised on direct appeal than
on habeas. Claims involving statutory violations, evidentiary rulings
and procedural rulings generally can be raised only on direct appeal.
Can I raise the same issues on habeas?
Once an appeal is decided, the court will not again address the same issue in a habeas proceeding. An exception may be where the law has changed between the time the appeal was decided, and the writ is filed.
What is the difference between direct
appeal and habeas?
In a direct appeal, the court is limited to
reviewing the record from the trial court. They are not able to
consider evidence which was not submitted. In habeas corpus the same
limitations are not present, and the court can consider additional
evidence.
In a direct appeal, almost any violation of law can be
addressed. This can include violations of statutes and rules. In
contrast, habeas corpus is generally limited to constitutional claims.
As a result, the violation of statutes or rules cannot generally be a
basis for relief in a habeas proceeding.
What kind of issues can be raised in
habeas?
As noted above, habeas corpus is limited to constitutional
issues. Those include the right to confrontation, the right to a fair
trial, the right to effective assistance of counsel, and the right to
due process.
Typical claims presented in habeas petitions include the
following: suppression or failure to disclose evidence; denial of right
to counsel; conviction based on perjured testimony; ineffective
assistance of counsel; legal sufficiency of the evidence; use of an
involuntary or coerced confession; jury misconduct or bias; failure to
knowingly enter a guilty plea; violation of double jeopardy; improper
identification; imposition of an illegal sentence.
Are there any other limitations on what can
be raised?
There are a number of significant restrictions on the
ability to raise claims in a habeas proceeding. The most common problem
is waiver. The doctrine of waiver recognizes that a court should have
an opportunity to rule on a claim at a time when it can be remedied.
What this means is that issues must be raised at the first opportunity
to do so. If an objection is not raised at trial, then you generally
cannot challenge the error on direct appeal or in a habeas proceeding.
For that same reason, the failure to raise an issue on direct appeal,
will generally prevent you from raising it in habeas. Even if the issue
was properly preserved at trial, but was not raised on appeal, it
cannot be considered.
The other barrier is what is called
retroactivity. Retroactivity deals with new decisions, or changes in
the law. Sometimes, a court can issue a decision which overrules a
number of other decisions. Such decisions may not always provide relief
for a defendant who has already been convicted. Generally, the courts
have held that new rules of procedure will not be applied
retroactively.
Therefore, unless the case is on direct appeal at the
time the decision is rendered, the defendant cannot take advantage of
it. The most recent example of this was the Court of Criminal Appeals
decision establishing a definition of reasonable doubt. The court held
that defendants who are convicted before that definition was
established could not come back and challenge their convictions.
In a few limited situations, a defendant
can take advantage of a new rule. Generally, decisions which construe a
criminal statute to exclude certain conduct will be applied
retroactively. The most recent example of this was the United States
Supreme Court decision holding that use of a firearm must involve
something more than mere access.
Defendants have been able to challenge
those convictions even if they were convicted before the date of the
decision. Also, certain rules the court determines are necessary to
ensure the accuracy and reliability of a trial may be applied
retroactively. However, the Supreme Court has yet to recognize such a
rule.
How are writs decided?
Most writs are
decided without any type of court hearing. The judge will review the
writ, and make recommendations on how it should be decided. For this
reason, it is important to include everything which may support a writ
along with it. Where there are claims of new evidence, then affidavits
should be attached.
In some cases, the court may decide to hold a hearing. Generally, where
there are disputes about important facts, the court may choose to have
a hearing to resolve them. The court can hold a hearing in one of two
ways. They can have each side submit affidavits, and make a decision on
those.
Alternatively, the court can have an actual hearing, at which
witnesses testify. That is a very rare process. Only those cases
involving serious issues concerning the effectiveness of counsel, or
the failure to disclose material evidence generally result in actual
hearings.
Who actually decides the writ?
The application for writ of habeas of corpus is filed in the trial court.
However, that court does not actually decide the case. The court enters
what are called findings of facts and conclusions of law. Those
findings will contain the courts view of what the evidence is.
The Court will also make any legal conclusions important to the case. The
court can also make a recommendation as to how the case will be
disposed of. The writ application, the findings, and the response, are
then forwarded to the Court of Criminal Appeals, which has the
authority to either grant or deny the writ.
The majority of cases are denied without written orders. These are often called white cards,
because all that is received is a white card, containing the sentence
that the writ has been denied. Occasionally, the court will actually
enter a written order denying the application. In any case, where
relief is granted, the court will generally issue a written opinion.
Cases can be disposed of by the Court of Criminal Appeals in one of two ways. The case can be decided without
any further input from the parties. In a relatively small number of
cases, the court may choose to accept the case for submission. If that
is done, then the court hears oral arguments just as it does in other
cases, and then issues an opinion.
The process for handling writs in federal court is different. The writ must be filed in the Court where
the conviction was obtained. That court then decides whether to grant
or deny the writ. As in State Court, federal writs are generally
decided based on the writ application itself and any accompanying
material.
Hearings are rarely scheduled, unless there is some dispute
about important facts. Unlike State Courts, federal courts do not
generally conduct hearings through affidavits.
What relief can be obtained?
The relief a
defendant can obtain through a writ of habeas corpus is to have the
conviction set aside. That means the case will be sent back to the
trial court. The trial court then must decide the case by either a
trial, or some other disposition. Despite what many people think, the
Court has no authority to do anything other than reverse the
conviction.
The Court cannot reduce the sentence, even if they think it
is excessive. The only way to accomplish that is through either
commutation or clemency, which is granted by the Governor.
Is there any further review?
If relief is
denied in the Court of Criminal Appeals, a defendant can pursue his
case in federal court. In 1996, Congress enacted what was labeled as
the "Anti-terrorism and Effective Death Penalty Act" (AEDPA). That act
substantially limited the authority of federal courts to grant relief
to state court prisoners.
Under the AEDPA, state court decisions are
reviewed to determine whether they are reasonable. Unless the decision
is contrary to a Supreme Court decision, or is directly opposite to the
facts established, relief will rarely be granted. This is significant
because the federal courts no longer review state court decisions to
determine whether they reached the right result.
Instead, they only determine whether the court acted reasonably. The result is that relief
can be denied even if he federal court would have decided the case
differently.
Are there any time limitations for filing a
writ?
The answer to this question is yes and no. The Texas Code of
Criminal Procedure establishes no time limits for filing a writ in
state court. However, a writ must be filed in federal court within one
year of the date the conviction becomes final. If you wait more than
one year to file a state court writ, then you will not be able to go
into federal court if you lose.
However, if you do file a writ, the
time during which it is pending is excluded from the one year period.
What many people fail to recognize is that the time starts running when
the conviction becomes final, and not when the writ is decided. As a
result, you generally do not have a full year after the writ is denied
to file a petition in federal court.
What if my writ has been denied - Can I
file another?
There are limits to filing second or subsequent writs.
Generally, you cannot file one unless there is something new. Merely
obtaining new evidence is not enough. You must be able to show that you
could not have obtained the evidence earlier through the use of
reasonable diligence.
The same rule applies in federal court. You can
also file a second writ if you are trying to taking advantage of a new
rule or a new court decision. However, generally there must be a
decision holding the rule should be retroactively applied before you
can do so.
How do I select a lawyer?
Selecting a
lawyer to handle a writ case is sometimes difficult. The difficulty is
in finding qualified and competent counsel. There are few lawyers who
regularly handle writ cases in state and federal court. This area of
law is extremely complex, and requires someone who has knowledge of
both the procedure and the applicable law, since many cases are
dismissed on procedural grounds without ever addressing the merits.
Most lawyers will readily admit they know little about habeas corpus,
and will not handle a writ case. However, some lawyers will do so, even
though they are not qualified. When selecting a lawyer, the best check
is to obtain recommendations from other persons who have used them, as
well as other lawyers who are familiar with their reputations.
The chances of winning a criminal case
decreases the further you go up the ladder of review. Once you reach
the habeas stage, a very small percentage of cases are ever reversed.
Therefore, you must go into the process with the understanding that the
odds are against you. Obtaining relief is a long shot at best, although
it is one which may be worth taking.
Obviously the odds are better in some situations than in others. It is up to each individual and their
family to determine whether the risk is worth it. Many times that
decision is best made after consultation with a competent lawyer.
How I Can Help
Habeas corpus is a complex area of law which few lawyers handle. Successfully handling a habeas claim requires knowledge of what can and cannot be raised, as well as the standards of review applied to different claims.
Of particular importance is knowledge of the complex rules of default and waiver, which often prevent the consideration of some claims.
This area of law also requires several different skills, combining the skills of a trial lawyer with those of an appeal lawyer. A lawyer must be able to investigate and review cases. Most cases involve a substantial number of documents that must be reviewed.
Additional investigation may also be necessary, and the lawyer must be able to identify the areas to investigate. Once that is done, the claims must be researched and presented to the court in a persuasive manner. Where hearings are conducted, the same skills used during trial must be employed to present the claim in a persuasive and convincing manner.
I have developed the experience and skill necessary to handle such cases. As with appeals, I regularly receive referrals from other lawyers. And I have also taught a class on post-conviction procedure at Baylor Law School for several years.
I have also attempted to share that experience with others through the book Understanding Habeas Corpus.
If you would like more information on how I can help you, please contact me.
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