Judges and prosecutors have a great deal of power. However, that power is not always exercised consistent with the rights accorded criminal defendants under the U.S. Constitution and federal/state law. If you have already exhausted your right to appeal your conviction and sentence, you should have an experienced habeas corpus lawyer take a look at your case.
Contact Protass Law PLLC at 212.455.0335 to learn how we can help.
The writ of habeas corpus is so historically important that it is enshrined in Article 1, Section 9, Clause 2 of the U.S. Constitution, which provides that “[t]he writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion, when the public safety may require it.” It is literally a request that a court enter an order directing the custodian of a person (usually a prison official) to bring that person to court for purposes of determining whether his/her detention is lawful – that is, whether a sentence should be vacated, set aside, or corrected because of a constitutional violation.
Criminal appeals and habeas corpus proceeding are different legal proceedings brought at different procedural junctures in the life of a criminal case. If a court makes a legal error at trial (such as an incorrect jury instruction or permitting non-admissible evidence or testimony) or imposes an unlawful sentence (such as a sentence that exceeds the maximum lawful punishment for an offense), a defendant can file a direct appeal with a higher (appellate) court.
That appellate court’s jurisdiction, though, is limited to reviewing the record of the case and determining whether a legal error occurred at trial or sentencing. It cannot consider new proof of innocence and cannot examine evidence that was not presented to the jury. Thus, a criminal appeal can only be used to overturn a finding of guilt based on a legal error committed at trial or sentencing.
Habeas corpus is different. A motion for a writ of habeas corpus is typically filed after a direct appeal has been denied. And, while it is presented to the same judge who oversaw trial and sentencing, that judge can consider the question of whether any constitutional violation occurred during the course of trial or sentencing and can even consider new evidence developed after trial. Thus, rather than examining a case for legal error, a habeas corpus proceeding examines whether any constitutional violations occurred at trial or sentencing.
N.Y. Civil Practice Law & Rules § 7002 provides the statutory right to pursue a writ of habeas corpus in New York. It states that a “person illegally imprisoned or otherwise restrained in his liberty within the state . . . may petition . . . for a writ of habeas corpus to inquire into the cause of such detention and for deliverance.” In other words, a person who is illegally imprisoned or otherwise has had their liberty restrained may, through the filing of a motion for a writ of habeas corpus, ask a court to ascertain the cause of the detention and ask for the detention to end. Grounds for a motion for a writ of habeas corpus in New York include:
When and to which court a motion for a writ of habeas corpus in New York should be directed depends on each individuals’ unique circumstances. A seasoned New York habeas corpus lawyer can guide and represent you in the filing and litigation of a motion for a writ of habeas corpus.
28 U.S.C. § 2255 provides the statutory right to pursue a writ of habeas corpus in federal court for challenges to federal court proceedings and 28 U.S.C. § 2241 provides the same statutory right to habeas corpus relief for challenges in federal court to state court proceedings. Regardless of whether the underlying case was in state or federal court, all federal habeas corpus challenges seek court orders to vacate, set aside, or correct a sentence based on a claim that:
Adjudication of a motion for a writ of habeas corpus in federal court is not guaranteed. Once filed, a court will consider the motion and must order the government to respond unless it finds that the record conclusively demonstrates that the petitioner is not entitled to any relief. Because of this legal hurdle’s significance, it is imperative that anyone considering a motion for a writ of habeas corpus in federal court work with an experienced post-conviction lawyer.
In doing so you will benefit from a seasoned attorney’s careful review of and critical legal thinking about your case. Experienced habeas corpus attorney Harlan Protass will offer a strong, convincing argument to a judge, improving the likelihood that you are granted a hearing and the potential for sentencing relief.
A motion for a writ of habeas corpus can be an effective legal tool in collaterally attacking a conviction or sentence. But it is only available to those who are “in custody,” meaning prison, jail or some other restriction on freedom of movement that the courts deem sufficient to satisfy habeas corpus’ “custody” requirement. Also, though a motion for a writ of habeas corpus can be filed at any time following conviction and sentence, they are customarily filed after all rights to appeal have been exhausted.
Notably, strict deadlines apply to the filing of motions for a writ of habeas corpus in federal court. 28 U.S.C. § 2255(f) provides that any petition for a writ of habeas corpus must be filed within one year of the latest of:
One other important point bears noting: Defendants only get one bite at the habeas corpus apple. If a defendant has filed (and lost) a motion for a writ of habeas corpus and wants to file a second of successive motion, s/he must first get permission to do so from an appeals court by demonstrating the existence of one of the following two circumstances:
There are many potential grounds for federal habeas corpus relief, though they all must be based on the violation of a constitutional or federal right. If you wish to proceed with such a petition, you need to consult with a habeas corpus lawyer regarding your particular circumstances and the arguments that are most likely to achieve some form of relief.
Typical grounds upon which motions for a writ of habeas are based include:
Several remedies are available to judges considering a motion for a writ of habeas corpus, all of which relate to the constitutional challenges presented. The potential outcome depends, of course, on the grounds for the motion, and include:
A conviction may mean that the trial process is over. But it does not mean that your case is over. You have an absolute right to appeal. And, depending on the facts of your case, you may also be able to present a motion for a writ of habeas corpus even after your appeal has been heard. Doing so can provide you with another chance at obtaining your freedom or correcting a serious legal error.
Whether you are eligible for and have grounds to pursue a writ of habeas corpus is complicated, as is the process for the filing of the court documents required for a habeas corpus petition. If you have exhausted your trial and appellate remedies, and if you are interested in continuing your fight with a motion for a writ of habeas corpus, you need to speak with a veteran appeals and habeas corpus proceedings lawyer at Protass Law PLLC.
Call 212.455.0335 today, or reach out online to learn more.
