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Habeas Corpus

May 10, 2021

Introduction

Habeas corpus is perhaps the most critical writ available to prisoners for challenging criminal convictions and sentences in state and federal courts. It is often the only opportunity to raise claims regarding pretrial, trial, and appeal matters that were not, or could not, previously be raised in those proceedings. Unlike a criminal defendant at trial or on appeal, a convicted prisoner does not have the right to an attorney to prepare and file a habeas petition.

Most habeas challenges are unsuccessful. The area of law surrounding habeas corpus can be very complicated. Many habeas petitions are dismissed in state and federal courts on procedural grounds without the courts ever reaching the merits of the prisoner's claims. You only get to file one habeas petition except for very limited circumstances (such as the availability of new evidence of innocence or governmental misconduct). Therefore, it is important when seeking habeas relief that you know the process and meet all requirements.

State Habeas Corpus

Under Virginia Code § 8.01-654, a prisoner seeking habeas relief in the state on a conviction or sentence can file the petition either in the Supreme Court of Virginia, which has original jurisdiction to hear habeas writs, or in the circuit court where the prisoner was convicted and sentenced. The petition must be filed either within 2 years of when the final sentencing order was entered, or within 1-year from when the direct appeal was disposed (if there was an appeal), whichever is later. The process once the petition is filed usually involves the state attorney general's office being directed to respond to the petition, and the prisoner being allowed an opportunity to submit a reply. The court then decides whether to deny the petition or order further proceedings, such as order a plenary hearing to take evidence and make factual determinations before ruling on the merits of the case.

If the petition is filed in the circuit court and the court denies the petition, you are entitled to appeal the decision to the Supreme Court of Virginia. If the petition is filed in the Supreme Court of Virginia and relief is denied, that concludes state remedies.

Federal Habeas Corpus

The federal habeas process is similar to that of the state with some differences. The federal habeas petition has to be filed in the United States District Court that sits in the District covering the circuit court of conviction and sentence. Virginia only has two Districts: Eastern and Western. Once the petition is filed, the state attorney general is usually ordered to submit the record of the state proceedings pertinent to the case along with a response to the petition. The habeas petitioner is usually given an opportunity to reply before the court decides the petition.

But there are some major differences between state habeas and federal habeas. In federal court,

The petition must be filed within 1-year of the incidents set forth in 28 U.S.C. § 2244(d)(1).
The claims in the petition must have been exhausted in the Virginia Supreme Court or meet the exceptions to exhaustion.
Federal courts view the claims under a highly deferential standard under 28 U.S.C. § 2254 (d). This means that federal courts cannot overturn the Virginia Supreme Court's decision denying your habeas claims simply because the federal court would have decided the claim differently.
If you have previously filed a federal habeas petition, you must seek permission from the Court of Appeals for the Fourth Circuit under a strict criterion to file a second petition.

Types of Habeas Claims

Non-Cognizable Habeas Claims

Of first importance are claims you cannot raise. These types of claims are referred to as “non-cognizable habeas claims.” This does not mean that the claim is not meritorious. What it means is that habeas corpus is not the proper forum in which to raise the claim.

This is what happened in the case of Slayton v. Parrigan, 215 Va. 27 (1974). The prisoner, Parrigan, filed a habeas corpus petition in the circuit court claiming, among other things, that his convictions was based on an alleged impermissibly suggestive pretrial identification. The circuit court found that to be true and granted the claim. However, the Warden, Slayton, appealed the decision to the Virginia Supreme Court which reversed the circuit court and held that the claim is “is not cognizable in habeas corpus” because it “could have been raised” at trial or on appeal. Id. 215 Va. 27, 30. This is known as the Slayton rule. The Slayton rules stands for the proposition that if you could have raised the issue at trial or appeal, you likely cannot raise it on habeas.

Another non-cognizable claim is a claim that was previously raised and resolved by the courts. See Henry v. Warden, 265 Va. 246 (2003) (“the issue raised by the petition was addressed and resolved in the trial and direct appeal of his criminal conviction and, therefore, is not cognizable in a habeas corpus proceeding”).

Various Types of Cognizable Habeas Claims

Ineffective assistance of counsel is the most common cognizable habeas claim raised by prisoners because it can only be raised in a habeas corpus proceeding. Walker v. Mitchell, 224 Va. 568, 570–71 (1983).

What is an ineffective assistance of counsel claim? It is a claim that focuses on the attorney(s) who represented you pretrial, trial, and/or appeal for any deficient performance (acts or omissions) that otherwise could have changed the outcome of the proceeding.

For example, let’s say that you were convicted based on a witness’s identification, but the identification was impermissibly suggestive, and your lawyer did not raise the issue at trial or on appeal. On habeas, you would be able to raise the issue under ineffective assistance of counsel as follows: Petitioner’s counsel was ineffective for failing to seek object to the impermissibly suggestive pretrial identification.

The same is true for any pretrial, trial, and/or appeal error that could have made a difference in the outcome of your case, but your attorney failed to raise. Here are some examples:

Not seeking exclusion of evidence based on Fourth Amendment Illegal Searches or Seizures;
Not presenting an alibi defense;
Not investigating and subpoenaing witnesses and evidence to contradict the prosecution’s case;
Not objecting to evidence that should have been excluded under prevailing legal authorities;
Not bringing the to the court’s attention prosecution misconduct that prejudices the defendant;
Not communicating a plea offer from the prosecution that the defendant would have accepted;
Advising a defendant to reject a plea offer and go to trial where the outcome at trial was more severe than the plea offer the defendant would have otherwise accepted; or
Not appealing a defendant’s convictions where the defendant expressed the desire to appeal.

It is important to note that there usually are legal standards governing most if not all issues that can be raised in a habeas corpus petition. Furthermore, whenever you make any claim on habeas, you bear the burden of proving each claim. Therefore, make sure you have the evidence to back up all of your claims.

Virginia Habeas Corpus Lawyer

The area of law governing state and federal habeas petitions involves many different complicated aspects. You need an attorney who has experience in habeas corpus proceedings. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.