Writ of Habeas Corpus

writ of habeas corpus lawyer

A direct appeal is not the only way to challenge your conviction or sentence in Texas. If you fail to get relief on appeal, you may file a habeas corpus petition in state or federal court. With few exceptions, you can file only one habeas petition. So, if you file one on your own or with the help of a “jailhouse lawyer,” you could risk squandering your last hope for relief. You should consult first with an experienced Dallas writ of habeas corpus attorney.

At Broden & Mickelsen, LLP, we are board-certified by the Texas Board of Legal Specialization in Criminal Appellate Law and Criminal Defense Law. We understand how the habeas corpus petition process works. We also have a record of successfully guiding our clients through the habeas process in state and federal courts in Texas and beyond.

Contact us today to discuss how we can help you or a loved one seek relief through a habeas petition.

Our Experience with Petitions for Writ of Habeas Corpus

Most criminal appeals lawyers have little or no experience representing clients in habeas corpus proceedings. But at Broden & Mickelsen, LLP, we handle multiple habeas petition cases throughout the year in state courts in Texas and in federal courts throughout the nation.

We recently helped one client serving a 15-year sentence for aggravated assault and another client serving a seven-year sentence for aggravated assault have their convictions vacated. Through a habeas petition, we also helped a client get his 30-year sentence reduced to 15 years. In another recent case, a client serving a life sentence for murder won a new trial.

Only limited grounds for relief through a habeas petition exist. So, we charge a fee to evaluate the merits of any potential habeas claim. For that fee, we will review the case and conduct all necessary investigations and research. Only if we find a valid basis to claim your conviction or sentence was unlawful will we charge an additional fee for litigating the habeas petition.

What Is a Writ of Habeas Corpus?

For most criminal defendants, filing a petition for a writ of habeas corpus serves as their last chance to get post-conviction relief. It involves a high hurdle. You must prove that your conviction or sentence is unlawful or that you are demonstrably innocent of the crime.

Usually, a habeas petition presents new evidence. For instance, you may learn that favorable evidence was readily available before trial, but your trial lawyer failed to investigate or present it. Your trial lawyer may even admit that they had no strategic reason for their conduct and provide an affidavit that supports your case.

The type of habeas corpus petition you file depends on where you were convicted.

Were you convicted in a federal court?

If you were convicted in federal court, you would file the habeas petition first in federal court under 28 U.S.C. § 2255. You must file the petition within one year after your sentencing date or within one year after your direct appeal was final. You would file the petition in the United States District Court where you were convicted. Typically, the court will direct the petition to a magistrate judge for resolution. If the district court denies the petition, you can appeal to the United States Court of Appeals.

Were you convicted in a Texas state court?

If you were convicted in a Texas state court, you would file the habeas petition first in a state court under Article 11.07 of the Texas Code of Criminal Procedure. You can file the petition any time after your conviction. Like the federal petition, you would file it in the trial court where you were convicted. The trial court will recommend whether to grant the petition to the Texas Court of Criminal Appeals, which has the final say.

If the trial court recommends denying the petition, the Court of Criminal Appeals will rarely grant it. Even if the trial court recommends granting the petition, the Court of Criminal Appeals may still deny it.

If the Court of Criminal Appeals denies a state petition, you can file a petition in federal court under 28 U.S.C. § 2254. However, you must still file the petition within the one-year deadline for filing a federal habeas petition. The federal deadline runs from one year after the final direct appeal is denied in state court, minus the time the state habeas petition was pending in state court.

What Are the Grounds for a Habeas Corpus Petition?

Generally, in a habeas petition, a person claims their confinement is unlawful because the person’s arrest, trial, or sentence violates their constitutional rights. Some of the grounds for relief that we as Dallas habeas petition attorneys at Broden & Mickelsen, LLP, often identify include:

  • Ineffective Assistance of Counsel
    A defendant may get relief such as a new trial if the defendant shows that their attorney provided constitutionally deficient performance, and that performance affected the trial (or even the guilty plea) in a harmful or “prejudicial” way. For instance, an attorney may have failed to investigate crime scene evidence, interview potential alibi witnesses, or consult with experts, and as a result, a defendant may have been kept from showing the jury key evidence.
  • Involuntary Guilty Plea
    A defendant must overcome certain procedural hurdles to challenge a guilty plea. If a defendant can challenge the plea, however, one potential ground for undoing the plea may be that it was not a knowing, intelligent, and voluntary decision. For instance, an attorney may have failed to advise a client that pleading guilty to the crime would lead to deportation proceedings – and avoiding deportation may have been the client’s top concern.
  • Due Process Violations
    It violates a defendant’s due process rights when police and prosecutors fail to turn over evidence before trial that is favorable to the defense and could have impacted the outcome. That is commonly called a Brady violation – named after a U.S. Supreme Court decision. Another common due process violation is the prosecution’s knowing presentation of false testimony or other evidence. That is called a Napue violation. Many people refer to these types of violations as “prosecutorial misconduct.”

Grounds for relief can also be based on the discovery of new evidence. The discovery of the evidence itself may lead to getting a conviction overturned or a sentencing change. If you have been unable to obtain relief after your state or federal conviction, it will benefit you to have your case reviewed by attorneys at Broden & Mickelsen, LLP, who have an in-depth understanding of these and other potential issues that can be raised in a habeas petition.

How Long Does a Writ of Habeas Corpus Take?

Filing a petition for a writ of habeas corpus is not a fast process. The time it takes to resolve your petition will depend on many factors, including whether your case goes through the Texas state court system before entering federal court. Additionally, if your petition is denied, you may be able to appeal to the United States Court of Appeals or even the United States Supreme Court.

While your habeas petition lawyers at Broden & Mickelsen, LLP, will work as diligently as possible on investigating, researching, and drafting the petition, many factors will be beyond our control. If a case involves complex issues, for instance, a court may simply take more time to make its decision.

Generally, the habeas process may take one year, or two years if the petition is litigated in federal after state court. But again, those are only rough estimates. What you can count on is receiving regular communication and updates through the process from your federal appeals lawyer at Broden & Mickelsen, LLP.

What Is the Difference Between a Direct Appeal and a Writ of Habeas Corpus?

A petition for a writ of habeas corpus is different from a direct appeal in many ways. For example, in an appeal, the record is basically frozen or limited to the transcript, exhibits, and other documents offered at the trial level. With a habeas petition, you can offer new evidence, including evidence you have discovered since the trial.

Another significant difference lies in filing deadlines. In a Texas state court, you must give notice of appeal within 30 days from your sentencing date. However, you can file a habeas petition in state court at any time after sentencing. But keep in mind that the one-year federal habeas petition deadline will start to run from the date when your direct appeal was denied in state court, minus the time the state habeas petition was pending.  Similarly, in federal court you must file a notice of appeal within 14 days from your sentencing whereas you can file a habeas petition related to a federal court conviction within one year of your conviction becoming “final.”

Understanding Post-Conviction Relief Options

Here is a quick summary of some of the post-conviction relief options that we as Dallas post-conviction relief attorneys may pursue on behalf of our clients:

  • 28 U.S.C. § 2255 – You can file a habeas petition in federal court if the conviction you are seeking relief from was entered in a United District Court.
  • 28 U.S.C. § 2254 – If you are seeking relief from a state court conviction, this statute gives you a chance to seek relief by filing a petition in federal court if your state habeas petition is denied.
  • 28 U.S.C. § 2241 – You can file a motion under this statute in the district where you are confined. Unlike a habeas petition, no one-year deadline applies. Many people use this motion to seek relief based on problems with their sentence or detention conditions.
  • 18 U.S.C. § 3582 – Under this law, federal inmates can seek a compassionate release or reduction in sentence based on showing extraordinary or compelling circumstances such as medical issues or even the death of a family member.
  • Federal Rules of Criminal Procedure 33 – This rule allows a defendant to move for a new trial “if the interest of justice so requires.” The motion must be filed within 14 days of the verdict or finding of guilty. If it’s based on newly discovered evidence, it must be filed within three years of the guilty verdict or finding.
  • Federal Rules of Criminal Procedure 35 – This rule allows a court to correct an error in sentencing or reduce a sentence if a defendant has provided “substantial assistance” in the investigation or prosecution of another person.
  • Retroactive sentence reductions – As laws change, inmates may be eligible for reductions in their sentences. For example, several years ago, the U.S. Sentencing Commission retroactively cut federal prison terms for many drug crimes.
  • Pardons, commutations, and clemency – Although they are granted in only the most exceptional cases, asking the Governor’s office to use its authority to grant relief is an option as well after a conviction.