Habeas Corpus Appeals

After a defendant has been sentenced and his conviction has been affirmed on “direct appeal” (mandatory appeal plus any discretionary review), a defendant still has a right to bring a “collateral attack” to test the validity of the conviction or sentence. These types of proceedings are essentially secondary appeals that are commonly known as “Habeas Corpus” proceedings. Technically, habeas corpus is a civil proceeding that is separate from the criminal case, even though the only question in a habeas corpus case is whether relief can be granted with respect to the criminal conviction or sentence.

The grounds for habeas corpus generally have to be based in state or federal constitutional provisions. For a federal prisoner to obtain habeas corpus relief, he must show that he is being held in prison due to violation of his rights under federal law. Since the United States constitution is the only federal law that applies in state cases, habeas corpus relief cannot be granted to state prisoners who bring habeas claims in federal court unless they can establish a material violation of the United States constitution.

Habeas corpus proceedings will involve Post-Conviction Writs of Habeas Corpus and federal Motions to Set Aside or Vacate federal Sentences, or to set aside state court convictions. In state court, habeas practice might also involve parallel or included proceedings on motions for orders to test DNA material.

There are many procedural rules including deadlines that can affect the ability to successfully file a writ; consequently, every defendant who loses an appeal should immediately consult with a lawyer to determine if a writ should be pursued, and in many cases, it is important to begin preparing for a habeas corpus proceeding even before the appeal is decided, based on the contingency that the appeal will not succeed, and due to rules concerning habeas corpus timing after an appeal is concluded. In order to have a realistic chance on habeas, some defendants should have a lawyer start working on a writ application while the appeal is still pending, or if a lawyer is not a possibility, the prisoner should begin preparations to proceed pro se (without a lawyer), which is not advisable, but might be the only option if the court will not appoint counsel. In both the state and federal systems, a court has the ability to appoint counsel, which should be a better option than when a prisoner decides to go forward pro se.

The main potential advantage of proceeding on a particular claim on a writ over a direct appeal would be that any evidence can be gathered in support of the writ claim, which was not possible at the time of the appeal, because the record was closed after trial. A defendant should be aware that there might be procedural rules and considerations about what claims should or must be brought on direct appeal, instead of being reserved for habeas corpus.

Addressing Ineffective Assistance at Trial through use of Habeas

Every defendant has the right to counsel at trial and the right to effective assistance of counsel in connection with all aspects of his defense. A defendant’s right to have the effective assistance of counsel is guaranteed under the Sixth Amendment to the United States constitution.

Under the Sixth Amendment, all attorneys must act within the range of competence demanded of counsel in criminal cases, which is ordinarily determined by looking at the totality of the representation, although isolated errors that are sufficiently egregious and material may form the basis for reversal of a conviction or sentence based on a claim of ineffective of counsel.

A claim of ineffective assistance generally seeks to establish that the trial attorney was not adequately prepared or made other serious errors, and that a different outcome would have occurred except for those errors. Ineffective assistance of counsel is very difficult to establish, but every case should be carefully analyzed for ineffective assistance, because it is not always obvious. Sometimes the ineffective assistance is rendered due to unawareness of legal protections or the operation of laws that the defendant would not be in a position to understand.

Ineffective assistance of counsel is a very common claim in writs of habeas corpus, and to a lesser but still substantial extent on direct appeal. When the issue of ineffective assistance is litigated but rejected on direct appeal, it might under the correct circumstances be re-litigated on habeas corpus if the defendant has support from materials that were not included in the record for direct appeal. To be done correctly, proceeding on a post-conviction writ usually requires substantial investigation and research and analysis of complicated procedural and substantive issues. Also, the work has to be done within certain deadlines, or it may not make any difference.

DNA Testing in Connection with Habeas Claims

A person who has been convicted in a case where there was DNA evidence that was not used at trial, or that was used under outdated technology, might be eligible, depending on various rules, to have a motion granted to obtain that testing now. If there are persuasive results, a defendant could use that evidence to seek release on an application for writ of habeas corpus. Under the Texas Code of Criminal Procedure, a defendant who has been convicted can motion the trial court for an order for the State to release DNA samples to a laboratory for testing. The samples have to be relevant to a factor that could have affected the jury’s deliberations, or were material to the decision regarding a guilty plea or waiver of rights; for example, the DNA would have suggested the identity of the perpetrator as being someone other than the defendant. Even when DNA samples were tested at the time of trial, a defendant might obtain new testing if there are newer techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. A defendant can seek DNA testing anytime the reasons for the testing are of such a nature that the interests of justice require DNA testing.

Using Habeas to Address Missed Deadlines on Direct Appeal

While there is usually no way to address missed deadlines with respect to habeas corpus proceedings themselves, appellate counsel might be able in certain circumstances to use a writ of habeas corpus to obtain an “out of time appeal” with respect to proceedings that should have been allowed earlier on “direct” appeal, which includes the mandatory appeal to the intermediate court of appeals, and the petition for discretionary review in the high court. A defendant might be able to obtain an out of time appeal, which returns him to the direct appeal stage that precedes habeas proceedings, if it can be shown that the missed deadline was not the defendant’s decision or fault in failing to file a timely notice of appeal or petition for discretionary review.

It may be advantageous to try to go back in time in the process in order to raise an issue on direct appeal instead of raising it first on habeas corpus. Depending on the type of claim, it might be required for a defendant to first raise it on direct appeal in whole or in part.