The grounds you assert your Writ of Habeas Corpus on can make or break your case.
It is very important that you and your loved ones know the ground to assert your case on, but that raises the obvious question: What grounds are good to assert in your case, and what grounds have no chance?
The answer is complicated and partially depends on the facts of the case, but here are some claims that you should consider, and some you should avoid.
First, of the bad claims, there’s what I like to call the coulda woulda shoulda principle. If you could’ve raised it on appeal and your case after your trial, that’s called a record claim. That means that you should have raised it on direct appeal because direct appeal addresses those issues, which were objected to in your trial and the court of appeals oversees the rulings on those objections.
Ineffective Assistance of Counsel Claims
A good claim instead of a record claim is ineffective assistance of counsel claim. Your lawyer should have objected to some evidence that came in and he didn’t, and therefore the evidence came in, and therefore you were not able to take that upon appeal.
Any claim in the record that should have been brought on appeal is something that’s not going to be very good. Ineffective assistance of counsel is one of the best, most commonly used, and most versatile claims possible with a Writ of Habeas Corpus.
Ineffective assistance of counsel is good because you can bootstrap a lot of things to it, the performance of your lawyer, and that he should have done a better job, even if he did object or present evidence. There are a lot of complex things that go into the trial of a case, and even the best of lawyers make mistakes in trial and this can cause it to be a situation where you received ineffective assistance of counsel.
Brady Evidence Claims
Another common ground for a successful Writ of Habeas Corpus is Brady evidence. Brady Evidence is when exculpatory evidence was withheld by the prosecution or the police, you entered a plea involuntarily, you’re actually innocent, false evidence was used against you, some witness got on the stand and lied about something relevant to your case, and/or the prosecutor used some piece of documentary or video evidence, which was somehow tainted, altered or fake in some way. You received an illegal sentence, you were sentenced outside the range of punishment for your particular offense. We’ve talked about all of this before.
That’s been one that we have been able to successfully overturn previously revolving around an illegal sentence where everyone misunderstood what the person was being charged with. Bad habeas claims are going to be things where you’re challenging the indictment unless you can show jurisdiction or sufficiency of the evidence claims. That’s something you’re going to assert on direct appeal, not something you bring in a writ case. Although if there’s no evidence to support a conviction, then you could bring those things.
Fourth Amendment Claims
Challenging the legality of a search or seizure of you or your property is considered a type of record claim typically. This one is kind of counterintuitive because you would think that it’s constitutional. Well, because you were given the opportunity to assert a fourth amendment claim in your trial or in your pretrial process, your lawyer should have asserted that there was an illegal search or seizure, and so rather than litigating it again in Writ of Habeas Corpus, your better method is to go after ineffective assistance of counsel, for your lawyer’s failure to either pursue it or to successfully pursue it in the sense that he didn’t prepare or research, or was not persuasive enough in his presentation of your suppression issue.
The judge rules on an objection of hearsay or speculation and or lack of personal knowledge or a business record affidavit are faulty. You will generally want to avoid these. There are also jury arguments. That’s something that should be objected to at trial. The jury argument made by the prosecutor in closing arguments that was offensive to your rights in some way, suppose it violated the four things that are allowed for closing arguments for the state, while your lawyer only objected in a half-hearted way. Again, you don’t assert that your jury argument of the state was a violation, you assert that your lawyer was ineffective for failing to challenge the jury argument.
This is going to be something that’s going to be a direct appeal type issue. A confrontation claim is where, you know, you were not allowed to confront or cross-examine the witnesses against you. Well, if that was the case, your lawyer should have objected. You could bring that as ineffective assistance of counsel claim rather than a claim directly in the Writ of Habeas Corpus. Like I said earlier, you can bootstrap a lot of these claims onto either your trial lawyer or your appellate lawyer, and you need to avoid the record claims that you could have brought, or that have already been brought.
Remember, as you’re thinking about these claims, you get one shot at freedom, you want to make your best claims upfront because any claims that you can or should have brought will be waived if you don’t bring them, unless there’s new evidence or a new law that develops after your first writ.
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.