Habeas Corpus in Federal District Court

What do you have to do to get to apply for a writ of habeas corpus in a federal district court for a wrongful conviction? I'm going to be outlining the answer here instead of going into precise detail because a detailed answer would turn this blog post into a law review article or even a book. The answer is different depending on whether or not the wrongful conviction that you are seeking relief from is a state or federal conviction. If it is a federal conviction, you must exhaust your rights to appeal, and apply for your writ before a year of time has passed consisting of all the days that the conviction was final. This one-year period comes from the Anti-Terrorism and Effective Death Penalty Act. If it is a state court wrongful conviction you have to exhaust your state appeals, if any, and your state applications for a writ of habeas corpus, again before there have been 365 days of judgment-finality. The 28th volume of the United States Code chapter 153 has the federal habeas corpus statutes, and there are, additionally, special rules for these proceedings, which can be downloaded here.
As compared to the vast majority of state courts, federal courts are preferable for applicants because federal judges serve for life on good behavior and have other protections for their independence, where state court judges by virtue of their limited terms are creatures of politics. In many places, including Texas, they must seek their benches as partisan political candidates. It is far more common for a judge to lose a bench by being too even-handed between the State and the defense than to lose their benches by being too hard on crime-- making them favorable to the prosecution. A federal judge who angers the electorate keeps the bench and the pay for life.

How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.

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)

Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

1.  a deadline or
2. an acknowledgement that laches applied

to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)

Poetical Reflection on Some of the Oral Argument Cases before the Texas Court of Criminal Appeals Today

There was an old woman of Natchez,

Ran a house where girls rented their snatches

The State did not claim,

That the writ— it was lame;

Habeas should have failed 'cause of laches.

Texas Court of Criminal Appeals Judge Cathy Cochran Tells You What's Needful for an 11.07 Writ

Texas Court of Criminal Appeals Judge Cathy Cochran- backed up by Judges Johnson and Hervey- explains that they want complete original application with all the information for 11.07 writ applications and responding timely to the State's answer and its proposed findings of fact and conclusions of law. Applicant William Lee Pond's counsel complained that they did not get timely notice of the trial court's finding of facts and conclusions of law.
In late February 2013, the trial judge adopted and filed the State's proposed findings of fact and conclusions of law and the district clerk sent a copy of them to Pond's counsel. That letter got filed in the middle of March and was forwarded to the Court of Criminal Appeals then. The judges complained that Pond alleged that both applicant’s trial and appellate attorneys were constitutionally ineffective, and alleged twenty purported failures by his attorneys. Eleven of his thirteen trial counsel complaints were about failures to object, but he neither asserted nor showed that those objections would have been or should have been sustained. Judge Cochran also complained that Pond failed to show or argue that he was harmed or that there was a reasonable likelihood that his trial result would have been different.
Judge Cochran argues that the original application should have had arguments and showings of harm and that Pond should have responded to the State's answer and findings when the writ application was still in the trial-court evidentiary part, when they might have been argued and changed. Applicant's counsel have to read their mail and respond timely to what the State argues and asserts. Sounds like good advice to me.
Hat tip to the estimable Jim Skelton. His Criminal Law Institute emails are wonderful.
Ex parte William Lee Pond, (No. WR‑79,267‑01,Tex. Crim. App. Sept. 13, 2013)(Cochran, J., concurring in denial of reconsideration- Johnson and Hervey, JJ., joining).