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.
About Me
- Bob Mabry
- Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.
Showing posts with label exhaustion of state remedies. Show all posts
Showing posts with label exhaustion of state remedies. Show all posts
Wednesday, May 23, 2012
Monday, April 2, 2012
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.
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.
Monday, September 6, 2010
The State Loses Two of Three Convictions of Wesley Wayne Miller
"I then did stand my trial, and boldly I did plea/ A flaw was in my indictment found and that soon had me free."- "The Lily of the West" (A traditional Irish song).
Wesley Wayne Miller, confessed and convicted murderer of Retha Stratton, got two of his three convictions reversed and remanded. The other one was held to have been waived. May be a federal court won't think so, but it is unlikely that he'll be able to get SCOTUS to take the case on direct appeal, and he may well be out before he can get his state habeas petition heard by the trial court and the state appellate court before essaying a petition in front of a federal judge-- the only kind of judge likely to give him any relief. If he can win any other part of the case though, his conviction will be overturned
Wesley Wayne Miller, confessed and convicted murderer of Retha Stratton, got two of his three convictions reversed and remanded. The other one was held to have been waived. May be a federal court won't think so, but it is unlikely that he'll be able to get SCOTUS to take the case on direct appeal, and he may well be out before he can get his state habeas petition heard by the trial court and the state appellate court before essaying a petition in front of a federal judge-- the only kind of judge likely to give him any relief. If he can win any other part of the case though, his conviction will be overturned
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