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Habeas Corpus & Post-Conviction Relief

If you were wrongfully convicted or sentenced, you have the right to seek post-conviction relief. The actions undertaken by your attorney may take several forms. The types of post-conviction relief actions include filing an appeal to seek to get a conviction overturned, a motion for a new trial, a motion to withdraw a plea, sentence commutation, or a writ of habeas corpus – often the last resort.

What is a writ of habeas corpus?

When the appeals processes have been exhausted, your attorney could take the legal action of filing a writ of habeas corpus. This action involves the legal argument that the individual has been illegally imprisoned. This legal action may be necessary in cases of a miscarriage of justice due to serious errors by the defense counsel or the discovery of new evidence that could lead to a reasonable doubt that the individual was guilty of the offense.  

What can a writ of habeas corpus do?

You have many rights under the U.S. Constitution, including “habeas corpus.” If you believe you or a loved one has been illegally or unfairly detained, a writ of habeas corpus can be filed with the court. This right found in Article 1, Section 9, Clause 2 of the U.S. Constitution, which reads:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

This is a centuries-old procedure that protects citizens and residents of the USA against unlawful or indefinite incarceration. When a writ of habeas corpus is filed, a federal court can review the legality of a person’s imprisonment. It is often the last resort for those who are unfairly imprisoned or wrongfully convicted, filed after all other appeals have failed. It is imperative that by showing that the incarcerated person was a victim of a “fundamental miscarriage of justice.” 

How to file an appeal after a miscarriage of justice

The appeals process requires engaging the services of a skilled appeals attorney – not all law firms offer this service. Your attorney will then file a “Notice of Appeal.” You have limited time in which to file this notice. In California, you have 60 days for this critical filing, with no ability to extend the time should you fail to meet the filing deadline. In federal civil court, you have only 30 days in which to file your Notice of Appeal. In tax court, you have 120 days. In federal criminal court, your Notice of Appeal must be filed within 14 days. Missing a filing deadline can be a disaster, barring you from the right to challenge an unfair verdict or sentence. If you or a loved one has been wrongfully convicted or sentenced, it is imperative that you seek legal counsel from a talented appeals lawyer at once.

The appeals process, step by step

The appeals process moves slowly through several steps:

  • Filing a Notice of Appeal: Your attorney must file the notice of appeal correctly and within the time limits as required under state or federal statutes.
  • Preparation of the trial transcripts: The records of what occurred at trial must be produced. 
  • Preparing the opening brief: Your attorney drafts a “brief,” which is a lengthy document that reviews the ruling in your case, outlining any violations of the legal procedures in your trial. 
  • Respondent brief: The respondent brief is drafted by the prosecuting attorney and filed in response to the opening brief filed by your appeals lawyer. This brief typically claims that the procedural errors outlined in the opening brief had no impact on the outcome of the trial.
  • Filing the reply brief: Your attorney may file a reply to the respondent brief. 
  • Oral arguments: Your appeal may include oral arguments presented at the higher court, whether state or federal. These hearings require exceptional legal skill, and many law firms do not provide representation for an appeal or know how to prepare for the oral arguments. 
  • Petition for review (when necessary): If the appeal fails, it can be submitted for a review to a higher court. 

Contact Hickey & Chung LLP for post-conviction relief counsel

Our legal team of criminal defense attorneys is dedicated to protecting the rights and freedoms of our clients in cases filed in either state or federal court. Attorney Brendan Hickey is a graduate of Harvard and formerly served as a federal defender. Naomi Chung is a talented appellate attorney who was recently listed as a SuperLawyers Rising Star. Your case will be in the hands of a true professional.

  • Pier 9, Suite 100   San Francisco, CA 94111