Difference Between Habeas Corpus and Criminal Appeal

by allenrogers on May 18, 2011

Habeas Corpus or Criminal Appeal?

What is the difference between a criminal appeal and an application for habeas corpus?

A criminal appeal usually presents the best opportunity to have a conviction overturned.  Claims such as rules violations, statutory violation, erroneous evidentiary rulings, improper jury argument, and sufficiency of the evidence can be addressed on direct appeal to a criminal appeals court.  All of the claims must be supported by the court reporter’s record or the court clerk’s record.

Notice of appeal must be filed within 30 days of the conviction and there are other strict deadlines to follow during the appeal process.  All criminal appeals in Texas are decided by one of the 14 intermediate Court of Appeal (except death penalty cases).  The losing party has the opportunity to seek further review from the Court of Criminal Appeals by way of a petition for discretionary review.

An application for habeas corpus relief is another remedy which can be pursued if an appeal is unsuccessful or no appeal was taken.  Habeas corpus relief is reserved for constitutional errors such as the denial of effective counsel or prosecutorial misconduct.  Generally, if a claim could have been raised on appeal, it cannot be pursued on habeas corpus.  The primary exception to that rule is a claim involving an allegation of ineffective assistance of counsel.

A record can be developed in habeas corpus proceedings by way of affidavits, depositions, or live testimony.  In state court, once the evidence is gathered in the court of conviction, the Texas Court of Criminal Appeals will rule on the request for habeas corpus relief.

In the case of a federal conviction, the federal judge at the trial court level can grant relief and set aside the conviction.  The losing party is afforded the right to appeal to the United States Court of Appeals for the Fifth Circuit.

How long do I have to file an application for habeas corpus?

There is no time limit to file an application for habeas corpus relief in state court.  However, if you wait too long, the prosecutor will claim you may not go forward because your delay in filing has hampered their ability to respond to your claims.

There is a time limit to file a federal habeas corpus application.  The rules are very complex and over 30% of all federal applications are dismissed because they were not filed on time.  Generally, a federal application challenging a state conviction must be filed within one year of the time the appeal process comes to an end.  Time during which a state application is pending in state court is added to that one year time limit.

Filing a federal application in federal court to challenge a federal conviction is also subject to the one year time limit.

Can I file an application for habeas corpus in state court, or only in federal court?

If the error in your case concerns a federal constitution violation, such as the denial of effective counsel or prosecutorial misconduct, you can file a habeas application in both courts.  State courts are responsible for enforcing federal constitutional rights just as much as the federal courts are required to enforce those rights.  If the state court is unwilling to recognize or enforce your rights, you may then present the claim to a federal court.

What happens if I win a habeas corpus application?

The relief which can be granted in a habeas corpus proceeding is as varied as the claims which can be presented.  Generally, if relief is granted, the conviction will be set aside and the case returned to the point at which an indictment was returned.  Some cases are dismissed, some are retried, and some are pled for time served.

An example of a case which could not be retried would be a finding of ineffective counsel for failing to challenge an unreasonable search.  Upon a finding the search was invalid; the government would have no evidence to go forward in a retrial.

Does it mean that charges are dismissed if I win an application for habeas corpus?

The filing of criminal charges and the disposition of those charges are largely decisions made by law enforcement officers and prosecutors.  A criminal appeals court grants habeas corpus relief upon finding a serious constitutional violation.  That violation frequently causes prosecuting authorities to re-think the strength of a particular case and whether it is worth pursuing on a second occasion.  Obviously, every case is different. An experiencd and competent criminal appeals lawyer will maximize your chances of reversing a conviction.

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