Legal Corner
In the last Issue of the 'DRJ', I tried to layout some
information on 'how to present issues/errors' for your federal
review on Habeas Corpus, ...A couple of the responses I did
get, showed that I wasn't too clear on the 'final point' of the
purpose of an ineffective assistance claim, because under the
'new law' "IAC"(= Ineffective Assistance of Counsel)
claims cannot he used to gain or seek 'relief As I explained
to those who inquired about that, the way to raise the IAC
claim is not to seek relief based on IAC, but rather to seek
review of the issue counsel was ineffective on... i.e. If
counsel was ineffective for failing to fully investigate
mitigating evidence issues during the punishment phase, and
thereby failed to present some mitigating evidence, you
would raise IAC for failing to investigate and present the
mitigating evidence during the punishment phase of trial, and
then ARGUE the mitigating evidence would have persuaded
the jury to give you a lesser sentence (this you could do on
the State Habeas process). But if the State Habeas Attorney
fails to do it, then you have to raise the IAC on Habeas
counsel (the forbidden issue under the new law!) and show
that if counsel had raised the issue, the State Habeas court
would have reversed the sentence phase based on the
mitigating evidence, and that you preserved the issue by
intonning counsel of the matter (That is where the copies of
your letter come in so importantly). Thus you aren't asking
the court to give relief based on the IAC, but rather on the
underlying 'mitigating evidence' issue. There was 'recently'
(the first week of April) a decision from the 6th Circuit, that
held that if an IAC claim is procedurally defaulted, it cannot
save or excuse the underlying procedurally defaulted claims.
That was in "Coleman v. Mitchell" (I don't have a cite yet);
But this goes to show the importance of preserving all of
your issues/claims, and that can be done simply by writing
your attorney about the issue "before he/she files a petition"
and saving copies of the letters to show/prove you have
written on the issue. ! A 'procedurally defaulted claim' is a
claim you (=your lawyer) has NOT presented to the Court. If
'something' occurred during the trial, and you fail to present
it to the appellant court it is procedurally defaulted for
'Habeas Corpus review', and the only excuse is that your
lawyer was ineffective ( or that it is an issue that wasn't
discoverable = 'new evidence', so if you then 'default' the
ineffective assistance claim, you lose! No more 'second
chances'. Like wise, if you don't get it raised in your State
Habeas Corpus, it would be 'defaulted' for Federal Habeas
review, if you default at state Habeas level, you can forget
the issue unless you have letters showing you informed
counsel you wanted the issue raised, and can show the issue
causes harm!
Someone asked me to 'explain the process' of the appeals.
For those who don't know. After a capital trial', "where a
sentence of death has been returned, the Appeal is
'automatic'; That is, you don't have to file a notice of
appeal', and once the record is completed by the court
reporter (who has to type out a copy of what she/he
transcribes) that record is 'automatically' sent to the Texas
Court of Criminal Appeals, A copy is also given to the
attorney whom ever has been 'appointed' to represent you
during the appeal; Or in case you've managed to hire an
attorney, he will notify the Court of such fact and a copy of
the record will be provided to him/her (but you don't get
both an appointed attorney and hired one! If you can hire an
attorney, you'll have to also pay for 'investigations' and such
unless you show the court you have become 'indigent'!);
After the 'Transcript' has been completed, and the lawyer
provided a copy, he/she must file an 'appeal brief' within 30
days, or seek an 'extension of time' (most attorneys do seek
additional time); Once the Appeal brief is filed, the State's
attorney (one of the prosecution team) will file an answering
brief basically defending the issues the attorney has raised,
and the Appellant Court will then decide the issues. While
this is taking place, the trial court has ALSO appointed State
Habeas Counsel, who has to file a State Habeas Corpus
petition within 45 days after the Appeal Brief has been filed
(the Habeas petition is file in the trial court), and is held ,
until the Appellant Court has decided the 'Direct Appeal';
However, while the Habeas petition is being 'held' the Trial
Court must issue a 'writ' which requires the State to file an
answer to the petition within 30 days ( or seek extension);
Once the answer is filed, the trial court must decide if there
are any issues that must be given an hearing (the evidence
wasn't developed during trial); and has 20 days to do so after
the answer is filed; If a hearing is to be held it is just like the
trial. where witnesses are called and testify, etc., then the
record is prepared, and the parties (you and State) can file
'purposed findings of fact and conclusions of law' (this asks
the court to make specific rulings/decisions in each party's
favor); once the Trial court enters its 'findings of fact and
conclusions of law', the entire record is forwarded to the
Court of Criminal Appeals, and the parties again file 'briefs'
addressing the trial court's 'recommendation' (=the 'findings
of fact and conclusions of law'); then the Appellant Court
has 180 days to decide the petition. Once the State Appellant
Court has decided the petition, if Relief is Granted (you get
whatever the Court instructs, new trial, new punishment
hearing, in RARE cases release!), if the Court has denied
relief, then the attorney will file a request in Federal court for
appointment of counsel (or if you have a viable issue, some
attorneys will file for 'rehearing' in the Appeal Court, or file
for 'Certiorari' in the U.S. Supreme Court; Generally neither
are successful, and a petition has to be filed in Federal
District Court). Once the attorney files in Federal District
Court =FDC) that Court will appoint an attorney, and a new
Habeas Corpus petition is filed in that Court raising the
SAME claims you raised in the State Habeas proceeding (if
you raise 'other claims', that is grounds for dismissal of the
petition, and you may lose the ability to file in federal court
again!), and the Federal process is the same as the State
process with regard to any hearing and such, however, the
FDC MUST presume the State Court decision is correct, and
you have to 'rebut' that presumption in the petition filed. If
you are denied relief at the roc, then you may file 'notice of
appeal' and HAVE TO request 'permission to appear from
the FDC by requesting a COA (Certificate of appeal ability);
If the FDC denies a "COA" you can then request one from
the 5th Circuit Court of Appeals, or if the FDC grants
'COA', the case will be set on the 5th circuits docket, and
your attorney will be instructed of WHEN to file, and How
many pages or WORDS the Appeal Brief can be. Once you
file the State again has to answer (the same in roc, the state
must answer the petition). If you are denied by 5th Circuit,
then you can file a 'petition for writ of Certiorari' in the U.
S. Supreme Court. Each new petition/brief MUST address
why the Court below decision is wrong, and how you are
harmed by the decision. At ANY stage where you are
GRANTED RELIEF, the State then has the right to file an
appeal (in the same process you have) This is WHY our
three fellow sufferers (ndr. Max Soffar, David Gardner,
Michael Blair) who have been recently given 'relief are still
suffering-the State has filed appeals of the relief/decisions!
So it is a LONG hard battle! If the U.S. Supreme Court
denies relief, or 'refuses to hear the case' (as usually
happens), then you can file a petition for clemency (mercy)
with the Texas Board of Pardons and Paroles. That is the
appeal process from where we all sit, and for some it is a
speeding train, for others it is a long hard road; and with the
current conditions, and future outlook it's only going to get
harder! That's this round; I sure hope someone takes some
interest and starts submitting some
views/opinions/comments/ questions, so I can hear/read
something besides my ramblings!
PS. The 'certiorari' petition I spoke of filing in the last DRJ
was 'rejected' and a Direct Habeas Corpus was filed (a rare
event) which the Court ordered a reply to, but refused to
grant a 'stay' on, so Hittle was executed with the petition
pending, and therefore MOOT after his execution, so the
issue concerning the constitutionality of the law is still
"undecided". Just an "update on it!
ShozDijiji ShisInday
by ShozDijiji ShisInday
Greetings All: