Nc Filing a Criminal Appeal Extension Loopholes Post Conviction Relief Discretionary Review
Criminal Law
On Entreatment
The nuts of mail service-conviction habeas corpus
Past John C. Prezas
The jury has establish the accused guilty. The intermediate court of appeals has affirmed the conviction, and the Texas Court of Criminal Appeals has refused the defendant's petition for discretionary review. Yet, the defendant still believes the process was fundamentally, constitutionally, unfair.
This is why habeas corpus exists as a post-conviction, post-direct entreatment remedy.one This article provides a basic overview of this important process.
What Is Habeas Corpus?
The writ of habeas corpus is a safety valve to address either (1) a fundamentally, and ultimately constitutionally, defective process leading to the confidence or sentence, or (2) a claim of bodily innocence. The requirements to prevail on a claim of actual innocence are quite high. Cases meeting the stringent standards imposed usually involve exculpatory DNA results. Habeas corpus is not a second appeal or a way around an unfavorable decision on direct entreatment. Defendants cannot assert claims in a habeas application that they did enhance or could have only did not raise on straight appeal. Neither tin can they raise claims credible from the appellate record. Instead habeas corpus is a vehicle to make a record of new evidence that demonstrates either innocence or a ramble violation. Because appellate courts practice not admit or dominion on prove, the various types of habeas corpus procedures involve the access of evidence and testimony in a trial court.
With one exception discussed below, there is no ramble correct to the assistance of counsel on an application for writ of habeas corpus,2 simply the judge presiding over the application does have the discretion to appoint counsel if he or she and then chooses.
Types of Habeas Corpus
While the diverse types of writs vary somewhat in the specifically applicable rules and procedures, they share a common order of proceedings. Understanding this order can assist make articulate the differences between them.
The Basics of Writ Proceedings
Writ proceedings begin when the convicted defendant files an application for writ of habeas corpus and serves the land with a copy. Thereafter, the defendant is referred to as the applicant. The Court of Criminal Appeals mandates a form for Article eleven.073 writs available on its website and from whatsoever commune clerk. While other writ applications do not accept a required form, many copy or draw inspiration from the Court of Criminal Appeals' form.
The land generally files a written answer. If the state does not, the writ claims are deemed denied. However, the respond is the country's opportunity to raise sure defenses or equitable issues.
The receiving court may deem the filing frivolous, if it does non raise cognizable problems upon which the courtroom can grant relief, and deny the application. Otherwise, the court bug an guild designating problems raised past the awarding virtually which it desires to receive show. Information technology receives that evidence either through witness testimony at a hearing or without a hearing via affidavit and written exhibits.
The trial court evaluates the evidence received, the application, the state'due south answer, its own retentivity of the trial or plea proceedings where applicable, the record, if any, and the contents of the commune clerk or canton clerk's file on the case. The court must then brand findings of fact and conclusions of law along with its order either denying or granting relief, or a recommendation of such an outcome. Both parties typically submit proposed orders for the courtroom's consideration. Sometimes, if the state agrees the writ has merit, the parties volition submit a joint proposed order. When issued by a trial court, an order granting or denying a habeas application is appealable via normal appellate procedures.
While all post-conviction writs share these features, the timing and mode of their execution varies by writ type. Appellate lawyers label the writ types by the sections of the Texas Lawmaking of Criminal Process whence they bound.
Commodity 11.09
Commodity 11.09 on its face applies to all misdemeanor offenses. However, Article eleven.072 governs applications filed in all cases involving community supervision. This leaves Commodity 11.09 to govern misdemeanors involving jail sentences.
More often than not, canton courtroom judges hear misdemeanor writs, usually the gauge presiding when the challenged confidence occurred. However, district courts can and sometimes practice preside over these proceedings,4 such every bit when an applicant was charged with a felony offense but, pursuant to a plea deal agreement, admitted guilt and was sentenced in a district court on a misdemeanor criminal offence.
Unlike the writs discussed below, the Code of Criminal Procedure does not impose any deadlines for the misdemeanor writ procedure. Thus, wise practitioners present the court with a proposed scheduling gild when necessary to keep the proceedings moving. The court in which the application is filed designates issues, receives evidence, and issues an club granting or denying relief.
Article 11.072
Article eleven.072 governs writ applications in misdemeanor and felony cases involving defendants currently on or who accept successfully completed community supervision. If the applicant had his or her community supervision revoked and was sentenced to a flow of incarceration, he or she should file the writ application under either Article eleven.09 (misdemeanor) or Article 11.07 (felony). The applicant files the application with the clerk of the sentencing court.
The state has 30 days to file an answer and can obtain 1 xxx-24-hour interval extension. Thereafter, the trial court either dismisses the application as frivolous or designates issues, receives evidence, and, non later than 60 days from the date the state's answer is filed, enters an order granting or denying relief.
Article xi.07
Article eleven.07 governs writ applications in felony cases where the defendant was sentenced to a term of incarceration. The bidder files the awarding with the clerk of the court in which he or she was sentenced. The applicant must use the class prescribed by the court of appeals. Because the defendant is usually incarcerated and often files these applications pro se, in practice the district clerk often serves the state. Hither, the state must file its respond inside xv days of service. Inside 20 days of the expiration of the time for the land to file its answer the trial court must either dismiss the application as frivolous or enter an lodge designating issues.
Over a period of 180 days, the trial court receives prove from the parties regarding the designated issues. Thereafter, unlike Articles 11.072 or 11.09, the trial courtroom cannot grant or deny relief. Rather, the trial courtroom enters an order setting forth its findings of fact and conclusions of law as well as recommendation every bit to whether the application should be granted or denied.
Upon expiration of 180 days, the district clerk forwards its writ file, including trial courtroom'south findings, conclusions, and recommendations, to the Courtroom of Criminal Appeals, which considers the case and disposes of the writ by either granting or denying it with or without a written order. While at that place is no right to appeal the Courtroom of Criminal Appeals' decision, that determination, or the underlying conviction, can exist challenged past an application for a writ of habeas corpus in federal court, though those proceedings are beyond the scope of this article.
Commodity xi.071
Article eleven.071 governs the proceedings for a writ application in a capital murder case in which the defendant was sentenced to death. This functions much similar an Article 11.07 proceeding, salvage for certain additional protections for the bidder. For example, unlike other writs, in an Article xi.071 proceeding, the bidder is entitled to counsel. Often, if the applicant cannot afford counsel, the trial court will appoint the Office of Capital and Forensic Writs, which exists for this very purpose.
Timelines too differ from an Article eleven.07 writ because in this type of case, counsel is appointed and investigates potential writ claims while the direct entreatment proceeds. Thus, the application deadline is the after date of (1) 180 days after habeas counsel is appointed or (two) 45 days later the land'due south brief is filed with the court of appeals in the direct appeal. Habeas counsel tin can obtain a ninety-twenty-four hours extension subsequently giving detect and an opportunity to be heard to the state. The state's answer is due 120 days after information technology receives notice of the awarding. The state can obtain one extension up to just no later than 180 days after it receives notice.
This writ is besides filed with the clerk and investigated past the trial court, which so submits recommendations to the court of appeals. The Court of Criminal Appeals renders the ultimate decision. TBJ
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