Post-Conviction Writs of Habeas Corpus

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” or a “post-conviction writ” to test the validity of the conviction or sentence. Technically, habeas corpus is a civil proceeding that is separate from the criminal case even though the only question is whether relief can be granted with respect to the criminal conviction or sentence.

The ground for habeas corpus generally has to be based in state or federal constitutional provisions. 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. Some defendants should start working on a writ application while the appeal is still pending.

Appellate counsel might be able in certain circumstances to use a writ of habeas corpus to obtain an “out of time appeal” if it can be shown that it was not the defendant’s decision or fault for not filing a timely notice of appeal. It may be advantageous to try to raise an issue on direct appeal first, because it might be barred if it can only be considered substantively on the basis of a writ application. Obtaining an out of time appeal will not outright bar a later writ of habeas corpus to reach the merits of an argument that could not be part of any out of time appeal that was obtained.

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 very common claim on a writ is ineffective assistance of counsel. A claim of ineffective assistance 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 and his loved ones would not be in a position to understand.

To be done correctly, proceeding on a post-conviction writ usually requires enormous 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.