Legal Corner
by ShozDijiji ShisInday

Greetings All:

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