Have you or your loved one been convicted and want to go through the post-conviction relief process?
You must be curious about what to do when you have the right to appeal.
First, should you go through the appeal process or skip it and go straight to file the 11.07 writ of habeas corpus or both?
Here’s what to do.
First off, if you remember, the direct appeal comes straight after you’ve been convicted, whether you pled guilty or went to trial, you could potentially appeal that case to the Intermediate Court of Appeals. The Intermediate Court of Appeals makes a decision.
The downside is those decisions are time-consuming.
It takes a long time to prepare the appeal, have it filed, and have the court decide.
It takes between a year or two from the time you’re convicted until the Court of Appeals gives you a decision in your case.
Should You Pursue an Appeal or Just File the Writ?
If you’ve already commenced the appeal process, stay in it, because you can be granted relief from the appeal.
The 11.07 writ of habeas corpus should be the backup plan, not because it’s less priority, but because it necessarily has to come after the appeal is final.
It’s impossible to do both at the same time.
So, you must first off finalize the appeal process before you can think of proceeding to pursue the 11.07 writ of habeas corpus process.
A Writ of Habeas Corpus Takes Time
The reason we encourage people to either go through the appeal process or stay in the appeal process as well is that ultimately you have a situation where the writ of habeas corpus needs time to be researched, written, filed, and then ultimately decision made.
Plus, you’ve got only a one-year timeline when you want writ to be filed after your direct appeal has been finalized. If your writ of habeas corpus is denied, you can appeal it in federal court. If you don’t get it within one year after your appeal has been finalized, then you will be procedurally barred from federal court review of your habeas corpus petition.
You have a lot of time bought by staying in the appeal process because a year is a quick time to get an 11.07 writ of habeas corpus done.
So, while the appeal is pending, if you have the ability and the resources, start working on the 11.07.
- Be gathering your records.
- Reach out to an attorney who is experienced in the writ process
- Get him/her working on that process for you. So there’s more time for that attorney to prepare for the 11.07 writ so that all of your rights are preserved.
- Cases that have a one-year requirement usually come with many issues that have to be delved into, especially when it’s a trial case.
An attorney has to get through all of that transcript, research tons of issues, talk to lots of people.
And a lot of that is difficult to do in a year, plus you wanna have a little bit extra time in the year because if your writ is denied in state court and you have to get into federal court afterward, you don’t want to just have to turn around and do it the next day.
You need to have a few months to prepare the federal rep after the state writ has been denied.
So bide your time by staying in the direct appeal. You can have a court-appointed attorney pursue it for you.
Once you’re past the Intermediate Court of Appeals level, you’re not entitled to a court-appointed attorney, but go ahead and file a petition for discretionary review to get you that extra time that your attorney on your 11.07 could be working.
Additionally, the idea of pursuing a petition for a writ of certiorari to the United States Supreme Court will buy you extra time.
So, it’s something worth pursuing to get you that extra time to allow your 11.07 attorney to get that writ of habeas corpus going on your behalf.
About The Attorney
Jacob Blizzard is board certified in both criminal law and criminal appellate law.
He regularly practices in the areas of state and federal criminal defense, criminal appeals, post conviction writs of habeas corpus.
In Texas, there are more than 100,000 attorneys licensed to practice, but only 7,450 are board certified.
In the entire State of Texas, as of the 2019 certification year, there were only 87 attorneys board certified in both criminal law and criminal appellate law, making Mr. Blizzard one of 0.087% of attorneys in Texas to hold both of those certifications.