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Habeas Corpus Attorney in Charlottesville, Virginia

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.

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.

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

  1. The petition must be filed within 1-year of the incidents set forth in 28 U.S.C. § 2244(d)(1).

  2. The claims in the petition must have been exhausted in the Virginia Supreme Court or meet the exceptions to exhaustion.

  3. 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.

  4. 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

There are a number of claims that can be raised in a habeas petition. Knowing which claims to raise in your case is important because not all claims are cognizable, such as claims of trial court error. The most common claim raised in habeas corpus proceedings is Ineffective Assistance of Counsel. This claim covers a wide range of issues. For example, suppose there is a trial court error that your trial lawyer failed to bring to the court's attention which would have made a difference in the outcome of the case. You can bring that issue under a claim of Ineffective Assistance of Trial Counsel for not doing so. This is true for any trial court error.

Another type of habeas claim is Prosecutorial Misconduct. Usually that involves the discovery of evidence that the prosecutor should have turned over but didn't in violation of Brady.

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.