Federal Habeas Applicant May Have New Habeas Counsel instead of the Habeas Lawyers Who Missed His Application Deadline.

I like practicing post-judgment law because there are very few unremediable errors. In seeking federal habeas corpus relief from a criminal conviction one irredeemable error is to file the application after the one-year deadline of the Antiterrorism and Effective Death Penalty Act.
You can seek federal habeas relief from a state or federal conviction. Calculating exactly what the deadline is is very technical. Basically, the AEDPA clock does not run when a conviction is not final because of rights of appeal.
Let's start with a state conviction. If the state offers an appeal, an impoverished defendant must be offered an appeal with an appointed lawyer at no charge to the defendant, not even for the clerk's record and the trial transcript. 40 of America's 50 states have at least one court of appeals intermediate between the trial court and the state's highest court.  In those states, the convict has a right to an appeal to one of those intermediate courts at no cost to the convict, but not to the state's highest court. In the other ten states, the appeal you get is to the highest court. Every state offers state habeas relief, It is nearly always wise, for strategic reasons, to seek your habeas writ after you have exhausted your appeals. The most common example of a reason to seek your writ after you've exhausted your appeal remedies is that you generally can't complain of ineffective assistance of counsel on appeal, but you can on a writ application. Now, if you're seeking relief from a state sentence, you can't get federal relief like this unless you have exhausted all of your state remedies. While your state habeas application, is pending, the AEDPA clock is not running. But when you are not open for appellate relief or writ relief, the clock does run, and if you don't file your federal writ application within that year, it is highly likely lost forever.
A federal sentence is easier. Because federal authority outranks state authority, there are no state remedies remedies to exhaust. The AEDPA clock only starts to run after there is no appellate power-- it's all federal authority. Like for the state conviction, wait more than your one year to apply for your federal writ, and it will almost surely be lost.
The Supreme Court of the United States decided yesterday that a death-penalty defendant whose appointed habeas counsel waited too long to file his federal writ application did not have to keep them while they tried to get around their mistake and get a late appeal. He had a right to have them dismissed and replaced with other federal appellate counsel who would not have the conflict of interest in having to defend their own error while trying to get it excused.
Justice Alito dissented, joined by Justice Thomas. They argued that their court should have decided whether or not it was possible to toll (that is, avoid) the deadline. If the deadline could not be tolled, it would not matter if the defendant got new counsel or not.
Christeson v. Roper, 574 U.S. ___, No. 14-6873 (Jan. 20, 2015)  (Roberts, C.J.,  Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ.) (per curiam)

He's Been Waiting More than 29 Years for His New Trial

What if Texas's highest criminal court, the Court of Criminal Appeals, ordered a new trial for somebody and more than 32 years passed and the new trial was never held? This appears to have been what happened to Jerry Hartfield, creating embarrassment and legal puzzlement for lawyers and judges in Texas, Louisiana and Mississippi.
Jerry Hartfield's IQ is supposed to be 51. He has only recently come to be able to read and write. He was convicted of the savage capital murder of Eunice Lowe in Bay City, Matagorda County, Texas (Bay City in Matagorda County was where I was a prosecutor- super nice people, a great place for a nature vacation) in 1977. The Court of Criminal Appeals overturned his conviction in 1980.
Now this is where it starts to get hinky. Now today if there was a problem with a sentence, but no problem with the adjudication of guilt, a case could be remanded for punishment only, but back then it was all or nothing. The State asked for the CCA to reform the sentence to life, but the court said it could not. In the alternative, the State asked for leave to ask the governor to commute the sentence. In the end, after having been asked by the Matagorda County Sheriff, the district attorney, the trial judge, and the Board of Pardons and Parole, the governor did so March 14, 1983. At that point, Hartfield's appointed counsel stopped working on the case.
On November 14, 2006, Hartfield applied for a writ of habeas corpus in the Matagorda County trial court. Thirteen days later, see supplemented his petition with request for a speedy trial, which the trial court forwarded to the CCA. On January 4, 2007, Hartfield sought a writ of mandamus from the CCA to get his trial. On January 31, 2007, the CCA denied all.
October 22, 2007, Hartfield filed a habeas application in the federal Southern District of Texas court in Houston. The prison system's counsel moved for summary judgment because Hartfield's application was more than a year after the judgment against him which was purportedly contrary to the Anti-Terrorism and Effective Death Penalty Act. The Houston magistrate judge demurred, ruling that Hartfield was not being held pursuant to a state judgment;  it had been reversed so that AEDPA didn't apply. The magistrate also held that Hatfield had not exhausted his state remedies- a state application for a pretrial writ of habeas corpus. Furthermore, the magistrate held that as a pretrial writ application it was in the wrong location. A non-judgment application like Hartfield's is supposed to be where the person is being detained which in this case was the Eastern District of Texas. Prison counsel appealed the ruling that Hartfield's application was not time-barred. Hartfield appealed the ruling that he had not exhausted state remedies. The Fifth Circuit affirmed. Now prison counsel appears to be trying to get the Fifth Circuit to reconsider.
 It is very, very hard to represent capital defendants on appeal. A near-obsessive focus on deadlines is required and constantly keeping in mind the procedural posture of the case. Back in 1983, nobody wanted this case retried and it appears now that unless the Fifth Circuit changes its mind, Texas is going to have to retry and re-convict and re-sentence Hartfield or let him go.

Jerry Hartfield v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division; No. 11-40572 (5th Cir. Oct. 9, 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.

Habeas Corpus in a Texas State Appellate Court

I can't think of any exceptions to the rule that you cannot get a writ of habeas corpus in a Texas state appellate court until you have first sought one in a Texas state trial court. Cf. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967) (orig. proceeding). An appellate court does not have the capacity to make a trial record, so if you want habeas relief you have to start where a record can be made: your trial court. And remember the AEDPA clock is running from the time your trial judgment is final (not counting the times that appeals toll the finality of the judgment), and the total time you have for all your habeases is one year.
So don't start in the appellate court, bubele.

When and in Which Courts Can Post-Conviction Writs of Habeas Corpus Be Sought?

A convict only has one year from the time that the conviction is final to apply for a writ of habeas corpus. This is because of the Antiterrorism and Effective Death Penalty Act of 1996. This rule looks like it is simple, but it's not. Appealing a case tolls the one year period, and deciding when a conviction is really final is sometimes difficult in light of the fact that some appeals courts can choose in their discretion whether or not they are going to hear a case.
After the conviction is final, if the one-year deadline has not passed, the principle of exhaustion of remedies controls which courts will hear a writ application. Generally, if one is convicted in a Texas trial court, one has to apply in the Court of Criminal Appeals, only after that can one then apply in a federal trial court. Contempt judgments and commitments as a sexually violent predator have more steps. State judges, trial and appellate, are politicians, subject to losing elections if they make unpopular rulings. Getting to federal court is where one often gets one's first real chance for relief, since they don't lose their jobs if they make unpopular rulings since they serve for life on good behavior. It means as a practical matter, that it can take years before a defendant can get to a decent forum.

Some State Administrative Procedure Tolls Federal Habeas Deadline

Fifth Circuit justice Jerry E. Smith, writing for a panel including Justices Jacques Weiner and Jennifer Elrod, remanded trial court dismissals of habeas corpus petitions because Tex. Gov't Code section 501.0081(b)(1)-(2) bars a state habeas petition for at least 180 days after the filing of a required time-credit dispute-resolution request, which, in turn, tolls the Antiterrorism and Effective Death Penalty Act of 1996.