Where to File Texas State Habeas Corpus Applications

In March 2012 I promised a post about what Texas state courts to file habeas corpus applications in, but I don't seem to have done it yet.

• Civil- Applications for writs of habeas corpus only arise in civil trial courts one of two ways:

1.  When someone is held in contempt of court. Contempts of court may be divided into two types: criminal and civil. Contempt of court is a crime in Texas, and habeas corpus may be sought against a criminal contempt finding, as it may for any other crime. Civil contempt is when judges confine people in order to coerce them to follow a court order. They appear to arise most often in family law matters. Judges may only hold people in civil contempt for a maximum of 18 months.There is no right to appeal a civil contempt order; the only relief is through habeas. In these cases, one may generally apply for habeas through a court of appeals that supervises that trial court. The Texas Supreme Court may also have jurisdiction but in practically all cases it will require a relator to exhaust its court-of-appeals remedy before the Texas Supremes will hear the case.
2. When the writ is sought as to a nongovernmental confinement, most commonly possession of a child contrary to family law rights, though habeas is a civil remedy against any unlawful private confinement, against a kidnapping, enslavement, peonage or the confinement of sex workers, etc. Courts of general jurisdiction may hear these matters: state district courts and most county-courts-at-law. If a relator doesn't like the result there, the relator can apply for a writ first in the court of appeals, then if one needs to go further, to the Texas Supremes. Under a few circumstances, an appeal may lie against a trial court's denial of habeas relief.

• Criminal pre-trial- One must start in one's trial court, and if one wants to go further an application may subsequently be made first the court of appeals, and, if necessary, in the Court of Criminal Appeals.

• Criminal post-conviction- Practically all such applications for State of Texas relief are governed by Texas Code of Criminal Appeals chapter 11, with special provisions for habeas applications relating to people under a death sentence, people seeking relief from community supervision judgments and people imprisoned for non-death offenses. People suffering under imprisonment convictions apply straight to the Texas Court of Criminal Appeals, which has a large group of staff attorneys dealing with  those cases, including old friends of mine formerly with State Counsel for Offenders. Non-death-penalty relators are governed by article 11.07 and has a required form which may be found here. Texas offers all indigent imprisoned convicts appointed counsel on appeal to the courts of appeal, but not to non-death-penalty prisoners, so the vast majority are not done with lawyers, but are done by the convicts themselves. The form is intended to be helpful to them and to ease the court's work. Community supervision relators have to try to reform their conditions in the trial court, then file in the trial court, and they and the State may appeal that decision.

CCA Says Prisoner's Prior Habeas Application Bars Relief for Trial Court's Lack of Jurisdiction

This is what happened to Casey Tyrone Sledge. He agrees to a plea bargain in the 181st District Court in Amarillo, Texas: deferred adjudication for sexual assault of a child. Three days after his probation term is up, the trial court issues a capias for him, because the state claims he has committed two more crimes. The district court adjudicates him guilty, sentencing him for five years. Sledge doesn't appeal, but he does apply for a writ of habeas corpus to the Court of Criminal Appeals for insufficient evidence. The CCA pours him out. After that, he files another writ application showing that the trial court had lost jurisdiction over his case by waiting after his probation period was over to call him back into court. Judge Tom Price, writing for a majority that included Presiding Judge Sharon Keller, and Judges Paul Womack, Michael E. Keasler, Barbara Parker Hervey ruled that the CCA did not have jurisdiction over the second writ application because Texas Code of Criminal Procedure article 11.07's requirements for a second writ application were not satisfied. Generally, a writ seeker is only supposed to have one application.
Judge Elsa Alcala wrote a dissent joined by Judge Cathy Cochran arguing that 11.07 did not apply since the trial court lacked jurisdiction. 11.07 is for convicts. A judgment of a court lacking jurisdiction is not a conviction. Judge Cheryl Johnson dissented without opinion, and Judge Lawrence E. Meyers did not participate in the case.
I think the CCA is using the prior application as an excuse for keeping a sex offender in prison.
Ex parte Casey Tyrone Sledge, No. AP-76,947 (Tex. Crim. App., Jan. 16, 2013) (orig. proceeding).

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) 

Habeas Corpus Process Different for TDCJ-ID Inmates Starting Sentences as Juveniles

Even though Zahir Querishi is serving a 40-year sentence on the Ramsey Unit of the Texas Department of Criminal Justice Institutional Division for capital murder and attempted capital murder, his habeas corpus rights don't arise under Texas Code of Criminal Procedure article 11.07, like the vast majority of other inmates. His rights are not statutory because he was not originally convicted in a Texas criminal court, but was instead adjudicated a juvenile delinquent, given his sentence, started serving it with the Texas Youth Commission and then, as a adult, was transferred to the prison system.
He can apply for habeas relief to the juvenile court, and if he is improperly denied it, he can appeal that denial to a higher court.
Querishi applied for relief in the juvenile court, was denied, and appealed, then he sought a writ of mandamus to force the Harris County District Clerk to transfer his notice of appeal to one of the appeals courts. While that mandamus was pending, the clerk went ahead and transferred the document to Houston's Fourteenth Court of Appeals and the appellate court dismissed the mandamus application as  moot.
Querishi got impatient with Harris County's District Clerk's office again and sought to mandamus them again, this time, to issue a citation in relation to his denied habeas writ application that was and is still pending in the Fourteenth.
Yesterday-- January 3, 2013-- the Fourteenth dismissed this second mandamus application on the ground that they could only mandamus a District Clerk to enforce their jurisdiction. They held that mandamus was not necessary to enforce their jurisdiction-- the matter was already pending before them-- so they didn't have the power to issue the mandamus whether they wanted to or not. So they dismissed the second mandamus application.
So far there have three proceedings as to this single appeal.
In re Z.Q., No. 14-12-01109-CV (Tex. App.--Houston [14th Dist.], Jan. 3, 2013) (orig. proceeding) (mem. op.) (per curiam, Hedges, C.J., Brown and Busby, JJ.).

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.

No Federal Constitutional Right to an Appeal

You'd think you'd have a federal constitutional right to appeal, but you don't. It's not in the U.S. Constitution. McKane v. Durston, 153 U.S. 684 (1894) stands for the proposition that the states don't have to offer you the right to appeal. If they offer anybody an appeal as of right, they have to offer it equally to both indigents and those that can pay, including appointed counsel. They don't have to offer appointed counsel for petitions for discretionary review nor for writs under the federal constitution.
Assuming that there are to rights to appeal in your state's constitution, it is vital that you check the statutes that you are relying on to claim your right to appeal and the appellate court's jurisdiction to hear it.
Where you have to get relief from a trial court in a proceeding from which there is no appeal, a writ of habeas corpus is how you get it. Elsewhere in this blog I've written about some of subtleties and pitfalls of seeking a writ.

Defendant Not Told Emphatically of the Danger of Bad Immigration Consequences Reversed

Alien takes deferred adjudication for assault family violence and violation of a protective order, gets adjudicated, gets processed for removal after his sentence is over. Alien says that he never would have pleaded guilty or no contest if he had known the plea was going to get him deported, and files habeas. Trial counsel says that he did not recall if he had advised the alien about the immigration consequences of his plea and that it was not his usual practice to do so. The plea paperwork warns that a plea may lead to removal, etc. Trial court refused habeas. Texas's First Court of Appeals in Houston held on that record that the alien's plea was involuntary and granted the relief.
The alien filed one habeas petition for each conviction; the opinions as to each are identical. The style of the case is Enyong v. State, Nos. 01-11-00943-CR and 01-11-00944-CR, (Tex. App.--Houston [1st Dist.] Apr. 26, 2012) (orig. proceedings).
The court seemed to feel bound by a prior opinion of theirs: Ex parte Tanklevskaya, No. 01-10-00627-CR, (Tex. App.--Houston [1st Dist.] 2011) (orig. proceeding), otherwise, I don't think that they would have ruled that same way, after all, the admonitions of the plea give notice of the possibility of deportation, etc. The worst that can be said of the written notices are that instead of saying that bad immigration consequences are almost certain to come from taking the plea, it merely says that those consequences may come.

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.

Habeas Corpus: a Remedy when an Appeal Is Insufficient or Unavailable

A state is not required by the federal constitution to provide a right to appellate review at all, but where a state does not provide a right to appeal and imprisons a person, a writ of habeas corpus is practically always available in a higher court to give relief against an unjust incarceration. Now the theory and practice of writs gets complicated in a hurry. Suffice it to say that the great majority of  judicial proceedings in America today are under streamlined, simplified procedures that were introduced in the early twentieth century to replace a congery of nonstandard writ practices. In a few areas, the old forms still raise their generally ugly heads. One of these is habeas corpus writ procedure. If one person holds another, and the prisoner claims to be held contrary to law, the prisoner may apply to a court for a writ of habeas corpus ("Habeas corpus" means "you have the body of another person[, a prisoner]."). If the court finds that the writ application makes out a proper prima facie case that the prisoner is being held illegally, the court will issue the writ, which summons the person who holds the prisoner and the prisoner to court to determine whether the prisoner is in fact being held contrary to law, and issuing whatever orders are necessary to conform the imprisonment to law up to and including, in a proper case, an order to release the prisoner.
Habeas corpus offers relief for people being held for trial illegally before the trial. It offers relief for convicts who no longer have a right to appeal or in addition to appellate rights they have. It offers relief for people who are held in contempt of court, for which there is generally no right to appeal, and it offers a practical solution for plain old false imprisonment under color of law or not under color of law.
This post talks about the basic theory of habeas corpus. Next week we'll talk about rules that determine when, and in which courts, habeas corpus relief can be sought.

Child Murder Acquittal Fails to Bar Medical Care Omission Child Injury Prosecution

A twenty-one-month-old child dies of  blunt force trauma of head with closed head injury when in the care of his father and his stepmother. The stepmother is tried for murder of the child and is acquitted. She is then put on trial for injury to a child by omission for failing to get medical care for the child. She applies for a pretrial writ of habeas corpus on the grounds that the State is collaterally estopped from the second set of charges on account of her acquittal. The appeals court refuses the writ on the ground that the injury to a child statute is explicitly differentiated from the murder statute, and that on the facts of the prior case, a person could be found to have not killed a child, but that non-killing would not necessarily rule out that she failed to get the injured child needed medical care when she was in charge of the child. Ex parte Crystal Desormeaux, No. 09-11-00035-CR (Tex. App.--Beaumont Nov. 16, 2011) (orig. proceeding). This opinion was written by one of our favorite justices, Montgomery County's own David Gaultney. Hat tip to the Texas District and County Attorneys' Association for the case

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.

Habeas Upheld for Ineffective Assistance of Appellate Counsel

The United States Second Circuit Court of Appeals upheld the granting of a writ of habeas corpus and a new trial Friday, April 2, 2010 to defendant Racky Ramfair because his appellate counsel was ineffective in assisting him.
Robert D. Sack, a Clinton appointee, wrote the opinion for a panel that also included senior-- that is, retired-- judges Guido Calabresi, famed Yale legal scholar who is also a Clinton appointee, and former chief judge Ralph K. Winter, Jr., a Reagan appointee.
Ramfair was accused of robbing cabdrivers in the New York City borough of Queens. His appointed lawyer Jonathan D. Latimer, III, was present at a lineup which identified Ramfair. It is undisputed that Latimer was at the lineup, but he does not remember if he objected then. Some of the men in the lineup had facial hair; some did not. The police had the ones who did not to rub their faces with carbon paper for the viewing.
The first trial resulted in a mistrial when Ramfair was assaulted while in jail. He had a second mistrial when a juror had to be hospitalized during the trial. The main issue at that trial was whether the robbery victims had said that Ramfair was the man who attacked them because he looked different from the other men in the lineup. At the third trial, a police witness revealed that Latimer had been present at the lineup and testified that he had not objected. Latimer asked the court for permission to testify to dispute that testimony. The judge overruled him. Latimer moved for a mistrial. It was also overruled. In closing argument, the prosecutor emphasized that Latimer had been at the lineup and of the testimony that Latimer had not objected then.
Ramchair was convicted, and ended up getting 10 to 20 years in prison. He had different appointed counsel on appeal. She brought two issues. First, that the trial violated double jeopardy. Second, that Latimer should have been allowed to testify.
The Appellate Division of the New York Supreme Court (equivalent to Texas's state courts of appeal) affirmed. It said that Latimer should have sought to withdraw. If he had, they said, Ramchair could have had a new, different lawyer and Latimer would have been just a witness instead of being both a witness and trial counsel.As a practical matter, this would almost certainly have required a fourth trial.
Making a long story short, the federal trial court held more proceedings in this case between June 30, 2009 and February 12, 2010, resulting in Friday's ruling.
Here are some observations about this. First, this is mostly a panel of retired judges. Federal judges are more open to do unpopular things-- like grant habeas relief-- than state judges are. Senior federal judges are even more likely to. Second, if the lineup was unduly suggestive, Ramchair might be doing time for a crime that he did not commit. Such a case is much more appealing to a federal habeas judge or an appellate judge than a due-process-type challenge made by a guilty person. Third, Ramchair has served approximately thirteen years of a 10-to-20 year sentence. If he was improperly convicted, he's done about as much time as he would have done had he been properly convicted. When I saw oral argument in the Fifth Circuit, I noticed the electric emotional effect such an argument on federals appeals judges in a case such as that. Fourth, conventional wisdom about how many issues an appellate lawyer should put in a brief is that one should not put in more than two or three (in an extreme case, four) if you really want the appellate court to rule in your favor. Appeals court judges don't believe that a trial could have more than a few important errors, and lengthy briefs make their hearts sink. The only time one wants many issues should be put in is when the purpose of a brief is to preserve error in some proceeding likely far-off in time. For example, a criminal defense lawyer may reasonably that the only court likely to rule for a defendant is a federal one. To get to that federal court properly, one has to exhaust one's state remedies and that might well take years. There is a good chance that the federal habeas lawyer will not be the one doing the original appeal to the trial court. The world might be very different then. That might be one scenario; the other is defensive law practice. Complain about everything, all the time, to be ready when the ineffective assistance of counsel claim is made or when the grievance is filed.