• What is habeas corpus?

    Habeas corpus is a legal proceeding through which you can challenge a final conviction. Habeas corpus can also used in other situations but, generally, habeas corpus is limited to complaints involving the violation of constitutional rights, or the jurisdiction of a court. The most common issue raised in habeas petitions is Ineffective Assistance of Defense Counsel in the original case.

  • How do we start the process?

    A habeas corpus proceeding is initiated in state district court by filing an petition for writ of habeas corpus. The application must be filed in the court where the defendant was convicted and sentenced. The writ is issued by the clerk’s office, and is actually an order to the Sheriff or warden to show cause why they are holding an individual. The court may then direct the District Attorney to file a response within a time certain.

  • When can a petition be filed?

    Because habeas corpus involves an attack on a final conviction, it cannot be filed until all the appeals have been decided. As long as an appeal is pending, the conviction is not final. The statute also requires a person to be in custody when the application is filed. Once a sentence is served, habeas corpus is generally no longer available. For the same reason, habeas corpus is not generally available to a defendant who is on probation.

  • Can I raise the same issues in my habeas petition as I did in my direct appeal?

    Once the direct appeal is decided, the court will not again address the same issue in a habeas proceeding. An exception may be where the law has changed between the time the appeal was decided, and the petition is filed.

  • What is the difference between direct appeal and habeas?

    In a direct appeal, the court is limited to reviewing the record from the trial court. They are not able to consider evidence which was not submitted. In habeas corpus the same limitations are not present, and the court can consider additional evidence. In a direct appeal, almost any violation of law can be addressed. This can include violations of statutes and rules. In contrast, habeas corpus is generally limited to constitutional claims. As a result, the violation of statutes or rules cannot be a basis for relief in a habeas proceeding.

  • What kind of issues can be raised in habeas?

    Habeas corpus is limited to constitutional issues. Those include the right to confrontation, the right to a fair trial, the right to effective assistance of counsel, and the right to due process. Typical claims presented in habeas petitions include the following: suppression or failure to disclose evidence; denial of right to counsel; conviction based on perjured testimony; ineffective assistance of counsel; legal sufficiency of the evidence; use of an involuntary or coerced confession; jury misconduct or bias; failure to knowingly enter a guilty plea; violation of double jeopardy; improper identification; imposition of an illegal sentence.

  • Are there any other limitations on what can be raised?

    There are a number of significant restrictions on the ability to raise claims in a habeas proceeding. The most common problem is waiver. The doctrine of waiver recognizes that a court should have an opportunity to rule on a claim at a time when it can be remedied. What this means is that issues must be raised at the first opportunity to do so. If an objection is not raised at trial, then you generally cannot challenge the error on direct appeal or in a habeas proceeding. For that same reason, the failure to raise an issue on direct appeal, will generally prevent you from raising it in habeas. Even if the issue was properly preserved at trial, but was not raised on appeal, it cannot be considered. The other barrier is what is called retroactivity. Retroactivity deals with new decisions, or changes in the law. Sometimes, a court can issue a decision which overrules a number of other decisions. Such decisions may not always provide relief for a defendant who has already been convicted. Generally, the courts have held that new rules of procedure will not be applied retroactively. Therefore, unless the case is on direct appeal at the time the decision is rendered, the defendant cannot take advantage of it. In a few limited situations, a defendant can take advantage of a new rule. Generally, decisions which construe a criminal statute to exclude certain conduct will be applied retroactively. The most recent example of this was the United States Supreme Court decision holding that use of a firearm must involve something more than mere access. Defendants have been able to challenge those convictions even if they were convicted before the date of the decision. Also, certain rules the court determines are necessary to ensure the accuracy and reliability of a trial may be applied retroactively. However, the Supreme Court has yet to recognize such a rule.

  • How are writs decided?

    Most writs are decided without any type of court hearing. The judge will review the writ, and make recommendations on how it should be decided. For this reason, it is important to include everything which may support a writ along with it. Where there are claims of new evidence, then affidavits should be attached. In some cases, the court may decide to hold a hearing. Generally, where there are disputes about important facts, the court may choose to have a hearing to resolve them. The court can hold a hearing in one of two ways. They can have each side submit affidavits, and make a decision on those. Alternatively, the court can have an actual hearing, at which witnesses testify. That is a very rare process. Only those cases involving serious issues concerning the effectiveness of counsel, or the failure to disclose material evidence generally result in actual hearings. Often when the court thinks the petition may have some merit, he will direct the Public Defender to appoint an attorney to file an amended petition.

  • Then what happens?

    The petition for writ of habeas of corpus is filed in the district court. The district judge decides whether to conduct an evidentiary hearing on the petition, allow oral argument or issue a decision without any hearing. If the district judge does not grant the petition, you may appeal the denial to the New Mexico Court of Appeals or, in capital cases, the New Mexico Supreme Court. Where relief is granted, the court will generally issue a written order. The process for handling writs in federal court is different. The writ must be filed in the Court where the conviction was obtained. That court then decides whether to grant or deny the writ. As in state court, federal writs are generally decided based on the writ application itself and any accompanying material. Hearings are rarely scheduled, unless there is some dispute about important facts. Unlike State Court, federal courts do not conduct hearings through affidavits.

  • What relief can be obtained?

    The relief a defendant can obtain through a writ of habeas corpus is to have the conviction set aside. That means the case will sent back to the trial court. The trial court then must decide the case by either a trial, or some other disposition. Despite what many people think, the Court has no authority to do anything other than reverse the conviction. The Court cannot reduce the sentence, even if they think it is excessive. The only way to accomplish that is through either commutation or clemency, which is granted by the Governor.

  • Can there be further reviews?

    If relief is denied in the New Mexico Court of Appeals, a defendant can pursue his case in the New Mexico Supreme Court and then federal court. Congress has severely limited the authority of federal courts to grant relief to state court prisoners. State court decisions are reviewed to determine whether they are reasonable. Unless the decision is contrary to a Supreme Court decision, or is directly opposite to the facts established, relief will rarely be granted. This is significant because the federal courts no longer review state court decisions to determine whether they reached the right result. Instead, they only determine whether the court acted reasonably. The result is that relief can be denied even if the federal court would have decided the case differently.

  • Are there any time deadlines for filing a writ?

    Yes and no. There are no no time limits for filing a writ in New Mexico state court. However, a writ must be filed in federal court within one year of the date the conviction becomes final. If you wait more than one year to file a state court writ, then you will not be able to go into federal court. However, if you do file a writ, the time during which it is pending is excluded from the one year period. What many people fail to recognize is that the time starts running when the conviction becomes final, and not when the writ is decided. As a result, you generally do not have a full year after the writ is denied to file a petition in federal court.

  • What if my writ has been denied – Can I file another?

    The vast majority of petitions for writ of habeas corpus are denied, less than 1% in federal courts and 3% in New Mexico state courts are granted. This means for every 100 petitions filed, only 3 are granted. There are limits to filing second or subsequent writs. Generally, you cannot file one unless there is something new. Merely obtaining new evidence is not enough. You must be able to show that you could not have obtained the evidence earlier through the use of reasonable diligence. The same rule applies in federal court. You can also file a second writ if you are trying to taking advantage of a new rule or a new court decision. However, generally there must be a decision holding the rule should be retroactively applied before you can do so.

  • How do I select a lawyer to handle my habeas petition?

    Most defendants who are incarcerated quality for a habeas attorney free of charge through the New Mexico Public Defender Office, as private attorneys typically charge $250-$350 per hour with estimated fees of $5-20,000 depending on the complexity of the trial and the habeas issues. Selecting a lawyer to handle a habeas case is sometimes difficult. The difficulty is in finding qualified and competent counsel. There are very few lawyers who regularly handle writ cases in state and federal court. This area of law is extremely complex, and requires someone who has knowledge of both the procedure and the applicable law, since many cases are dismissed on procedural grounds without ever addressing the merits. Most lawyers will readily admit they know little about habeas corpus, and will not handle a writ case. However, some lawyers will do so, even though they are not qualified. When selecting a lawyer, the best check is to obtain recommendations from other persons who have used them, as well as other lawyers who are familiar with their reputations. The chances of winning a criminal case decreases the further you go up. Once you reach the habeas stage, a very small percentage of cases are ever reversed. Therefore, you must go into the process with the understanding that the odds are against you. Obtaining relief is a long shot at best, although it is one which may be worth taking. Obviously the odds are better in some situations than in others. It is up to each individual and their family to determine whether the risk is worth it. Many times that decision is best made after consultation with a competent lawyer.