Texas Writ of Habeas Corpus

Habeas corpus is a legal proceeding through which you can challenge a final conviction. Generally, habeas corpus is limited to complaints involving the violation of constitutional rights, or the jurisdiction of a court to hear a case.

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.
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.

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.

HABEAS CORPUS Rulings

The supreme court recently resolved a split in authority in Duncan v. Walker, 121 S.Ct. 2120 (6/18/01). The issue was whether a prior federal habeas petition tolled the limitations period. The defendant initially filed a habeas petition before filing in state court. The petition was dismissed and a state petition was filed. Clearly, the filing of a state petition tolls the limitations period. The question is whether the filing of a federal petition did the same. The court held it did not, and therefore the petition was not timely.

Another Habeas decision is Rodriguez v. Mitchell, No. 99-2170 (2nd Cir 6/6/01). There, the defendant filed a federal habeas petition, which was denied. He then filed a motion to vacate the judgement under Rule 60 of Federal Rules of criminal procedure. The issue was whether the Rule 60 motion should be treated as a second or subsequent habeas petition. The court held it should not, which is contrary to decisions from the Fifth, Ninth, and Seventh circuits.

Redmond v. Kingston, 240 F.3d 590 (2001) This is a habeas case, in which the defendant successfully urged the violation of this right to confrontation. The claim was based on the inability to cross examine the complaining witness concerning a prior false allegation of rape she made to get her mother's attention. Court holds that such evidence provided evidence of a motive in making the allegation, and therefore was relevant to her credibility. The state court ruling denying relief was an unreasonable application of Supreme Court precedent, and relief was granted.

A somewhat troubling case is Malede v. United States No. 96-CF-737 (D.C. Cir 2/22/01) There, a defendant filed a complaint against his lawyer with the bar association. Counsel vehemently denied the allegations, and filed a motion to withdraw alleging he could not longer effectively represent the defendant. That motion was denied, and the lawyer represented the defendant at trial. On appeal, the defendant alleged the court erred in denying the motion without a hearing. Court holds that filing a complaint with a disciplinary authority is not sufficient to create a conflict. Neither was the response of the lawyer, with in the court characterized hostile and contemptuous). No matter what a lawyer feelings toward a client may, the court determined that does not prevent him from providing effective assistance. A defendant must still show how the conflict caused his lawyer to not pursue sure strategy or tactic. The defendant did not do so, and therefore no hearing was necessary.

An important case involving the standard of review in habeas is Washington v. Schriver, No. 00-2195 (2nd Cir 01/05/01). On direct appeal, the state court relied on state law, and affirmed the defendant's conviction. The question in federal court, was what deference should be given to that determination. The court holds that deferential review is only applicable when the state court discussed or at least cited federal law. Where that is not done, it cannot be said the claim was "adjudicated on the merits" in the state court proceeding. Thus, in that situation, the claims should be reviewed under pre AEDPA standards. The courts are not in agreement on this issue, and the fourth circuit has explicitly rejected it in Bells v. Jarvis.

Another case addressing the standard of review in federal court is Penry v. Johnson 121 S.Ct. 1910 (06/04/01). This was Penry's second trip before the court. In his first, the court reversed his death sentence and conviction because the jury was not given a means by which to consider evidence of mental retardation and childhood abuse. Penry was tried again, and the same issues were submitted. However, in an attempt to comply with the Penry holding, an additional special issue was also submitted which essentially told the jurors to answer a special issue no if they found mitigating circumstances. Court holds decision was an unreasonable application of Penry, and granted relief, even though every court that had considered the issued had held to the contrary.

An important opinion for inmates challenging parole is Crouch v. Norris No. 00-2415 (8th Cir. 5/1701). There, the defendant filed an unsuccessful attack on his conviction. He was subsequently denied parole, and sought relief. The issue was whether he could bring a second federal habeas petition to challenge his parole. Court holds the AEDPA should not be construed literally, but instead interrupted in light of pre-ADEPA abuse of the writ principals. Here, the parole claims could not have been raised in the first federal petition, because they did not exist. Therefore a second federal petition would not be abusive, and would not be barred under the AEDPA.

The right to be present at a writ hearing was addressed in Oken v. Warden, 233 F.3d 86 (1st Cir. 2000) The court held there is no sixth amendment right to be present at such hearings. Instead, a petitioner is only entitled to fundamental fairness, which is guaranteed by due-process. Due-process was provided in this case by allowing the petitioner to rebut testimony by way of deposition. The petitioner was also allowed to review transcripts of part of the testimony before cross-examination was finished. While the right to be present is important, the court finds that right deserves less weight in a post-conviction context.

An important decision for habeas petitioners is Artuz v. Bennett, 121 S.Ct. 361 (11/07/00). There, the issue was what is a properly filed habeas petition. The government argued that a petition subject to a mandatory procedural bar was not a properly field petition, and therefore did not toll the limitations period. The Court holds that properly filed is nothing more than compliance with the rules governing filing. Thus, as long as a petition is in the proper form, and filed in the appropriate place, the fact that it may be meritless, or subject to dismissal, is not controlling. Limitations will be tolled until the petition is ruled on by court.

A potentially important habeas decisions is Flowers v. Walter, 239 F.3d 1096 (9th Cir. 2001). There the court held that the AEDPA codified the retro-activity approach of Teague v. Lane. That holding is contrary to the decisions from the First, Seventh, Fifth, and Eleventh Circuits. The importance of that holding is that a rule maybe retro-actively applied even if that declaration has not been made by the Supreme Court. The court also noted that the Teague exception for watershed rules of criminal procedure affecting the fairness and accuracy of a criminal proceeding still applies under the ADEPA.

The Supreme Court recently decided two habeas cases. Daniels v. United States, 121 S.Ct. 1578 (04/25/01) and Lackawanna County Pa. District Attorney v.Coss, 121 S.Ct. 1567 (04/25/01) The issue in both cases was whether a defendant in a federal habeas corpus action could challenge a prior conviction used for enhancement. In one case, the defendant was sentenced as an armed career criminal, and sought to attack one of the convictions used to establish that status. In the other case, a prior sentenced was used in sentencing the defendant on a more recent case. In both cases the court held that a defendant cannot challenge convictions in that manner. Once a defendant is no longer in custody, and the time for challenging the convictions has passed, then he cannot belatedly file a claim in a subsequent action. The court does recognize an exception for convictions that are obtained in violation of the right to counsel.

Although not technically a criminal law decision, the decisions in Immigration and Naturalization Services v. St. Cyr, 121 S.Ct. 2271, & Calcano-Martinez v. Immigration and Naturalization Service, 121 S.Ct. 2268 (6/26/01) are important. The court first held that the AEDPA language was not sufficiently clear to eliminate habeas jurisdiction. Therefore, the court had jurisdiction to consider the claims. The next issue was whether certain amendments could be applied retro-actively, since there was language indicating that was their intent. The defendant had a prior conviction, which at the time made him deportable, but deportation was subject to waiver. Subsequent amendments eliminated discretion to grant such a waiver. Court holds that elimination of the waiver provision attached a new disability to a transaction already completed. Waiver was applied with some frequency, and therefore it could be assumed that it was part of the consideration to plead guilty. The court ultimately concluded that the amendments were not sufficiently clear to authorize a retro-active affect.