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Brenda's Husband, Joe's Dad and Bonny's Brother.

Wednesday, May 23, 2012

When Can You File Your Writ After Your Appeal Has Been Decided?

The Texas Court of Criminal Appeals has, by opinion, adopted a common-law rule that will simplify knowing when a post-conviction Texas Code of Criminal Procedure article 11.07 application for writ of habeas corpus is timely.
The mandate of a appeals court is rebuttably presumed to have issued at 9:00 AM on the day it was issued. Evidence can be taken to prove that the mandate issued later that day.
It appears to me that the best practice for applying for such a writ would be to schedule it for 9:00 AM local time at the appeals court, calling the appeals court's clerk's office and checking the appeals court's web site to look for the mandate, and not filing in the trial court until the issuance of the mandate is authoritatively confirmed. Remember that El Paso County, where the Eighth Court of Appeals is, is one of two counties in Texas that are on Mountain Time. The other is its neighbor, Hudspeth County. The rest of Texas is on Central Time.
 I got this case from the Texas District and County Attorneys Association Weekly Case Summaries email. The writer there appears not to appreciate how precious time is for a convict seeking post-conviction relief. The Anti-Terrorism and Effective Death Penalty Act of 1996 restricts the time that a convict can have between finality of all court acts and a federal writ of habeas corpus is one year.
As I've said before here, the U.S. Supremes have said that a defendant has to exhaust all the defendant's remedies before such a person can apply for a federal writ of habeas corpus. That means that they have to go through their state appeals and their state habeas remedies before they can get to a federal court. As a practical matter, the only relief that a convicted sex offender is likely to get is from a federal court of which the judges or justices don't have to face the voters afterward.

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