Writ of Habeas Corpus

Another way to overturn a state conviction is an application for a writ of habeas corpus. An application for a writ of habeas corpus asks a court to overturn your conviction because of a state or federal constitutional violation.

Unlike a direct appeal, there is no deadline for filing a writ in state court. You do not need to give notice within thirty days of your sentence. Furthermore, unlike a direct appeal, the court can consider matters outside of what is in the court reporter’s record.

The writ of habeas corpus is a right guaranteed by the United States Constitution and the Texas Constitution. Originally, habeas corpus was a remedy to prevent the government from holding a citizen illegally. So, if the government imprisoned someone for no reason, a lawyer could apply for a writ of habeas corpus complaining of the constitutional violation (lack of trial) and being confined in jail or prison.

A constitutional violation and “restraint” are still the two basic requirements for a writ of habeas corpus. However, the restraint requirement has expanded over time to include effects of a conviction other than imprisonment. For example, probation is now considered a form of restraint. Furthermore, a final conviction can meet the restraint requirement because it can be used to increase the punishment for a subsequent offense.

A typical habeas corpus claim is ineffective assistance of counsel. The United States Constitution requires that a defendant have competent legal representation. If your lawyer failed to advise you properly about the consequences of your plea bargain or pled you out without investigating the facts of your case, that may be a constitutional violation and the basis for a writ of habeas corpus.

Another habeas corpus claim is an involuntary plea. For example, if you agree to take credit for time served and your lawyer tells you that you will not have a final conviction on your record, that might be a constitutional violation. Or if your lawyer tells you to plead guilty to the judge and says the judge will give you probation, but the judge gives you a prison sentence, that might be a constitutional violation.

A writ of habeas corpus is typically the vehicle to litigate newly discovered evidence as well.

If your state writ of habeas of corpus fails, you can file a writ in federal district court. However, while a state writ does not have a deadline, a federal writ must be filed within one year of your conviction being final.

It is important to move quickly when considering a writ of habeas corpus. While a state writ can be filed at any time, if you wait too long after your conviction is final, a court will often dismiss your application under the doctrine known as laches (a legal doctrine which basically means you should have complained about the violation earlier). Furthermore, waiting too long will prohibit you from filing a writ in federal court. Often, federal courts are more sympathetic to habeas corpus claims than state courts.

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