Writ of Habeas Corpus

Dallas Criminal Defense Lawyers

A writ of habeas corpus is defined as:

“an order issued by a court or judge of competent jurisdiction, directed to any one having a person in custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.” Tex. Cod Crim. Pro. Art. 11.01.

Restraint is defined as:

“the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” Tex. Code Crim. Proc. Art. 11.22. Restraint can be incarceration or probation.

Besides an appeal, a writ is another way to overturn your conviction. In contrast to an appeal, there is no 30-day deadline to file a State writ. Federal writs must be filed within a year of your conviction being final. Keep in mind though if you wait too long to file a writ, a court may dismiss your claim based on a doctrine of laches, which means you should have complained about it earlier. So, intentionally waiting for your attorney to die before filing a writ will most likely result in the writ getting dismissed.

Filing a Writ

Now, when it comes time to filing a writ, you must first identify a mistake or error to be brought to the court’s attention and then proving this error. Post-conviction writs must always be filed in the court of conviction. Filing fees for writs are forbidden. Writs, unlike most appeals, deal with constitutional violations and are not limited to the court reporter’s record of trial.

Here are some of the most common claims raised in a writ:

  • Ineffective Assistance of Counsel. The US Supreme Court has articulated a 2-part test for determining whether counsel is ineffective: 1) counsel committed an error or omission not justifiable as reasonable trial strategy 2) the error prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.App. 1986)
    1. Failure to adequately investigate facts of the case
    2. Failure to convey plea offer
    3. Conflicts of interest
    4. Failure to file documents
    5. Failure to assert an available defense
  • Involuntary Pleas. A guilty plea is constitutionally invalid if not entered knowingly, intelligently, or voluntarily. Meyers v. State, 623 S.W.2d 397 (Tex.Crim.App. 1981)
    • Involuntary due to ineffective assistance
    • Misinformed plea
    • Failure to inform the client about collateral effects of guilty plea
    • Complete failure to admonish (where trial court failed to inform illegal alien of consequences of his plea on his citizenship status that made D a criminal deportee, plea is involuntary Carranza v. State, 980 S.W.2d 653 (Tex.Crim.App.1998)
  • Prosecutorial Misconduct. Under Due Process, a prosecutor has a duty to disclose evidence that may be favorable and material to Defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83,87 (1963). Failure to disclose is misconduct regardless if it was intentional or not.

There are other claims that can be made but these are the most common. Writs are very powerful tools that can be used to attack convictions. Most of the time a writ is the last opportunity a convicted person has so that is why it is important to get the ball rolling immediately. It is important to be represented by attorneys that have the necessary skills and experience to navigate this complicated area of the law.

Need Trusted Counsel? Call (214) 238-9844 Today.

Contact the lawyers at the Law Office of Patrick J. McLain, PLLC to have a writ filed on your behalf. We can help defend you against various crimes and fight vigorously to protect your legal rights.

You can call us 24/7 by calling (214) 238-9844 or visit our law office in Dallas, TX today.

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