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The Kinds of Claims You Can Raise in A Habeas Petition

Feb. 9, 2021

When you file a Petition for a Writ of Habeas Corpus you are challenging the legality of criminal convictions based on various types of constitutional claims. In other words, you are arguing that you shouldn't have been convicted because something illegal happened.

Prisoners often file habeas corpus petitions pro-se (without an attorney). It's important to know which types of claim (arguments) are available and which are not because you only get one bite at the apple in habeas corpus (except for rare circumstances, such as new evidence of prosecutorial misconduct). If you make a mistake and do not raise certain arguments in your habeas petition, you may waive those arguments in the future.

Non-Cognizable Habeas Claims

First, let's discuss the kinds of claims you cannot raise in a petition for habeas corpus. 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 (1974). The prisoner, Parrigan, filed a habeas corpus petition in the circuit court claiming, among other things, that his convictions was based on impermissibly suggestive pretrial identification. The circuit court found he was correct 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.

Another form of non-cognizable claims are those that were previously raised and resolved by the courts. See Henry v. Warden, 265 Va. 246 (2003) (Holding that “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”).

Cognizable Habeas Claims

Ineffective assistance of counsel is the most common cognizable habeas claims raised by prisoners. This claim 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' 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:

Ineffective Assistance of Counsel for:

  • Not seeking dismissal of the case based on 4th Amendment Illegal Search and Seizure violations

  • Not presenting an alibi defense where one existed

  • 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 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 based on clearly incorrect legal advice

  • 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 State and Federal Habeas Lawyer

The field of habeas corpus and the decision about which claims to raise and how to raise them can be very complicated. You need an attorney who has experience with 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.