Renowned California Attorney Explains the Writ of Habeas Corpus and Outlines Exactly How to Win
The Writ of Habeas Corpus is one of the most aggressive and optimal tools for a defendant who has been convicted and wrongfully incarcerated. The Writ of Habeas Corpus can help you reduce your sentence, get you released immediately from the law enforcement agency, and/or have your rights declared and respected. It has many intricacies, as highlighted below.
Matthew Barhoma, founder of Barhoma Law, P.C., explains:
- What is a Writ of Habeas Corpus?
- The timeline necessary to bring a Writ of Habeas Corpus
- Common successful arguments of a Writ of Habeas Corpus
- The differences between a Direct Appeal and a Writ of Habeas Corpus, and
- Procedure for Bringing a Writ of Habeas Corpus.
What is a Writ of Habeas Corpus?
The Writ of Habeas Corpus Generally
A Writ of Habeas Corpus is a Latin term that literally translates to the “production of the body” before a judicial body or tribunal. It is a device that invokes the defendant’s right to be present at a judicial proceeding. Assuming you are unjustly or wrongfully detained or incarcerated, you can challenge the legal basis of that imprisonment by methodically bringing a Writ of Habeas Corpus. This enables you to challenge the duration and length of your imprisonment and even the manner.
Generally, a Writ is an order from a higher power or court to a lower body or court. In essence, when you file for a Writ of Habeas Corpus, you are invoking your right to challenge your unlawful or incorrect imprisonment and you’re seeking the court’s ability to make an order to the government agency.
Your Writ of Habeas Corpus is predicated on a number of different arguments, discussed below in detail. Namely, you can bring a Writ of Habeas Corpus and include new and additional evidence that was not previously examined. Further, you can bring the Writ of Habeas Corpus to demonstrate to the court how you’ve suffered the ineffective assistance of counsel, or express your actual innocence argument, and introduce the new and additional evidence of any potential prosecutorial, judicial or jury misconduct.
Once you bring the Writ of Habeas Corpus, the court must approve it or deny it. If approved, it gives the prosecutor an opportunity to respond, or the appropriate law enforcement agency, as represented by the prosecutor. More on the procedure of the Writ of Habeas Corpus below.
The Writ of Habeas Corpus is an outstanding post-conviction remedy available to you. Through it, you can attain many kinds of successes in your case, including immediate release from custody, reduction of your sentence, stop illegal conditions to your incarceration, and even potentially seek a new trial.
A Federal Writ of Habeas Corpus
There are State Courts and Federal Courts. A Federal Writ of Habeas Corpus is a procedure where federal courts with national power can review the legality of an individual’s incarceration. Usually, this is a remedy to pursue after the California state court has denied your Writ of Habeas Corpus. This is commonly referred to as “exhausting your post-conviction legal remedies.”
To give rise to a Federal Writ of Habeas Corpus, you must allege a federal question. That means you have to allege that there is a Constitutional violation—such as your Fourth, Fifth, Sixth, and/or Fourteenth Amendment Rights. This is not very difficult to do. Almost always where there is an unlawful or wrongful incarceration, there is indeed a constitutional violation. As such, it’s almost always an easy burden to meet. For example, if your counsel during your trial was ineffective, there is a constitutional violation, as you have a constitutional right to an effective counsel. Similarly, if there was perjured evidence against you, you have a constitutional issue in the fact that cruel and usual punishment is a violation of your constitutional rights.
Note that a Federal Writ of Habeas Corpus has many procedural intricacies and should be pursued using the skill of an experienced attorney. Usually, Federal courts will reject a Federal Writ of Habeas Corpus if they were denied in State Courts on state grounds only. Or if they were procedural defective. As such, it is recommended that you seek the guidance of an attorney in pursuing your Federal Writ of Habeas Corpus. Barhoma Law, P.C., is committed to reviewing clients’ records to maximize their likelihood of success.
Timeline to File Your Writ of Habeas Corpus: You Cannot Delay!
The California Writ of Habeas Corpus Timeline
The timeline to file your Writ of Habeas Corpus is tricky. There is no bright-line rule of when it must be done. For example, a direct appeal must have a Notice of Appeal filed within 60 days from final judgement. Inversely, for a Writ of Habeas Corpus, no such rule exists. Rather, there is no real fixed statutory deadline to determine the timeliness of a state prisoner’s petition for habeas corpus. Instead, California directs petitioners to file known claims as promptly as the circumstances allow. And that’s precisely the timeline—without undue delay from the discovery of the grounds giving rise to the Writ of Habeas Corpus.
In our experience at Barhoma Law, P.C., successful petitions often explain when the defendant first learned of the claims that are being raised in the Writ of Habeas Corpus. This date is usually compared to the date that you brought or filed the Writ. So it’s the date of discovery versus the date of filing. In re. Robbins, the court held that “[s]ubstantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.” In re. Robbins, (1998) 18 Cal.4th 770, 780,77.
|X||Date of discovery of the information supporting the Writ of Habeas Corpus||Date you hired an attorney and filed your Writ of Habeas Corpus||X|
As illustrated above, at Barhoma Law, P.C., we think of this as a spectrum. On one end is the date you found the discovery of the information that supports the Writ of Habeas Corpus. On the other end is the date you hired an attorney and filed your Writ of Habeas Corpus. The further along in time the two ends are apart, the less likely the court will grant your Writ of Habeas Corpus. Inversely, the shorter in time that time is, the more likely your Writ of Habeas Corpus is to get treated with care and seriousness from the courts.
As such, we truly recommend that you consult with an attorney as soon as possible. Time is of the essence on this. Barhoma Law, P.C., routinely looks into the record and the supporting documents. And from there, we follow our two-step strategy mentioned above to maximize the possibility of success.
What if you delayed? Can you still bring a California Writ of Habeas Corpus?
The short answer is it depends. If you can illustrate “good cause,” you may be able to justify or get over a “substantial delay” hurtle in filing your California Writ of Habeas Corpus. In our experience, an “ongoing investigation” into other claims that may be included in the Writ of Habeas Corpus is “good cause.” More, you may have some clue of the evidence giving rise to the Writ of Habeas Corpus, but you were not made aware of your rights until you hired an attorney is also a sound argument. Courts will often look at the date an attorney rendered you the advice to file a Writ of Habeas Corpus as a date to indicate you knew or should have known to file.
As such, if you unduly delayed, good cause or ongoing investigation arguments may help overcome any timeliness issues. There are a number of exceptions to this rule. Therefore, only in limited circumstances, courts may actually still grant your California Writ of Habeas Corpus even if you unduly delayed. These limited exceptions include a constitutional error with grave magnitude, the actual innocence argument, or a wrongful death penalty conviction. Please note these are very limited exceptions and courts are not inclined to accept your California Writ of Habeas Corpus if you unduly delayed.
The Federal Writ of Habeas Corpus Timeline
Much more intricate is the Federal Federal Writ of Habeas Corpus. It has more requirements and deadlines that need the care and careful application of a post-conviction attorney. It is commonly said that the Federal Writ of Habeas Corpus can only be brought after you have exhausted all of your state “legal remedies.” Generally, that means if you are seeking a Federal Writ of Habeas Corpus, you must of already filed an appeal with the California Court of Appeals, timely. And if denied, then filed a writ of certiorari with the California Supreme Court.
Due to the added complexity of the Federal Writ of Habeas Corpus, it is strongly recommended that you seek the advice of a post-conviction attorney.
Common Successful Arguments of a Writ of Habeas Corpus: How to Successfully Reduce your Sentence or Seek Immediate Release from Imprisonment
There are many arguments you can bring in your Writ of Habeas Corpus that are known to be successful. If you bring them methodically, well drafted, and supported by the necessary evidence, you can increase your likelihood of success. Penal Code § 1473 highlight proceedings on the Writ of Habeas Corpus and the various grounds you can argue. It is precisely these arguments that make the Writ of Habeas Corpus such a powerful and persuasive post-conviction remedy. Matthew Barhoma, founder of Barhoma Law, P.C., discusses the most common successful arguments:
Ineffective Assistance of Counsel (Penal Code § 1473.7(a)(1))
Ineffective assistance of counsel is a claim you can assert in a Writ of Habeas Corpus that argues your defense attorney failed to perform his/her duties in a reasonably competent manner. This argument further asserts that the ineffective assistance of counsel was so far below the acceptable standard for lawyers, that it likely resulted in the unfavorable outcome.
Most notably, this argument asserts both of the following: the conduct taken by the ineffective counsel, as well as, the conduct not taken by the ineffective counsel. As such, it covers both the conduct and the omission of what a reasonable attorney would have done in that position.
There are two main arguments you should assert to successfully assert the ineffective assistance counsel in a California or Federal Writ of Habeas Corpus:
- The attorney’s performance was unreasonable in the circumstances asserted; and
- The performance prejudiced, or negatively affected, the defendant.
Common examples of the ineffective assistance of counsel include:
- A failure by the attorney to investigate the facts, prepare for the case, or did so carelessly.
- A failure by the attorney to raise necessary and common motions (i.e., a motion to suppress evidence, etc.).
- A failure by the attorney to call necessary witnesses to testify, who could have been favorable to the defendant and potentially changed the outcome of the jury’s or judge’s verdict.
- A failure by the attorney to hire the necessary experts to testify or rebut the prosecutor’s experts (common in gun related cases, ballistics, blood splatter, gang enhancements, drug enhancements, etc.).
- A Failure by the attorney to present necessary exculpatory evidence of innocence to rebut or raise doubt as to guilt of the defendant.
- A failure by the attorney to provide adequately or correct legal advice, and the bad advice was relied upon by the defendant.
- A failure by the attorney to make necessary objections to improper testimony.
- A failure by the attorney to address jury misconduct or prosecutorial misconduct.
The ineffective assistance of counsel is a strong argument, when the record supports it. If it is found in your records, it is generally advisable to pursue your Writ of Habeas Corpus. It is of absolute importance that you do not delay in bringing a Writ of Habeas Corpus to assert the ineffective assistance of counsel. It is recommended that you seek the advice of an experienced attorney in seeking your Writ of Habeas Corpus. Barhoma Law, P.C.’s attorneys offer free consultations to determine the likelihood of success on any Writ of Habeas Corpus.
Newly Discovered Evidence
One of the biggest advantages of the Writ of Habeas Corpus is the fact that you can introduce newly discovered evidence. Unlike any other post-conviction legal remedy, the Writ of Habeas Corpus enables you to introduce new evidence, not previously in the record. Generally, you can only do so if you bring it without delay from the date the new evidence was discovered.
Often, previous trial witnesses will recant their testimony, or will materially change their testimony. If you bring a Writ of Habeas Corpus with the newly discovered evidence, you will have to prove that the evidence would have likely changed the outcome of the trial.
As such, there are three main criteria to this argument:
- Newly discovered evidence, not previously in the trial record;
- The new evidence was brought on a Writ of Habeas Corpus without undue delay (discussed below in detail); and
- The newly discovered evidence would likely have changed the outcome of the trial.
If you are successful at proving those three items, you may be able to overturn your conviction or seek a new trial.
Misconduct by the Prosecutor
Prosecutorial misconduct is an important Writ of Habeas Corpus issue. It goes hand in hand with many of the other arguments discussed in this guide (such as the ineffective assistance of counsel, the actual innocence, the newly discovered evidence argument, etc.).
This is where the prosecutor engages in some form of misconduct. The core of this argument turns on whether the prosecutor committed an illegal act or engaged in unethical behavior, or both. Typically, this misconduct on behalf of the prosecutor is aimed at securing a conviction against the defendant, or even worse, securing a harsher or lengthier sentence when the conviction is attained.
Generally speaking, there are four broad categories of prosecutorial misconduct:
- Failing to turn over exculpatory evidence
- Using improper or knowingly false arguments
- Introducing false evidence, and/or
- Employing discriminatory tactics in jury selection, a violation of United States Supreme case law and the United States Constitution.
However, it is noted that on a Writ of Habeas Corpus, there are stricter thresholds to being granted an evidentiary hearing. As such, a prosecutorial misconduct argument needs to be brought artfully and supported by evidence either from the record or newly discovered evidence.
One way to seek judicial interference of wrongfully incarcerated inmates is to seek an actual innocence argument in a Writ of Habeas Corpus. This is a very persuasive and strong argument to make on a Writ of Habeas Corpus, when brought correctly. Over the last three decades, DNA evidence and better forensic testing have emerged, making many new innocence arguments possible. A California court will generally look at the evidence, assuming it meets all the criteria of a California Writ of Habeas Corpus.
Therefore, under the actual innocence argument, the trial record cannot have previously stipulated the evidence. Inversely, this is a new and additional evidence argument that now asserts the actual innocence. As with the new and additional evidence requirement, the Writ of Habeas Corpus cannot include items that could have been discoverable at trial but merely were not. This is a fresh finding of actual innocence.
False Evidence & Actual Innocence
It is to be noted that Penal Code § 1472(b)(1) and (2) specifically allow you to bring a writ if there was “false evidence that is substantially material or privative on the issue of guilt” and “false physical evidence” that can prove your innocence. More, Penal Code § 1473(c) highlights how this actual innocence argument is brought when the prosecutor knew of the false nature of the evidence.
New and Additional Evidence & Actual Innocence
One thing to keep in mind is the fact that a Writ of Habeas Corpus allows you to introduce new and additional evidence. This is a huge advantage to any other post-conviction legal remedy. Actual innocence can be proven by new and additional evidence. As such, if a witness recants their testimony, or a new witness statement emerges, you can introduce this new evidence of actual innocence. The new and additional evidence must be the kind of evidence that would have led to a different kind of outcome at trial.
When brought correctly, this argument can be very strong and persuasive in a California and a Federal Writ of Habeas Corpus. It is strongly recommended you use the assistance of a skilled attorney to bring this argument.
Barhoma Law, P.C., commonly goes through court records and interviews people familiar with the trial in asserting facts about the jury. If there is a strong showing or evidence of Jury Misconduct, we almost always will pursue this argument. This is also why we break up the Writ of Habeas Corpus representation in two phases:
- Phase (1): We review the underlying records and credibility of the Writ. If credible, we seek to maximize your likelihood of success. In this phase, we collect all necessary supporting evidence to your Writ of Habeas Corpus;
- Phase (2): We draft, file and litigate the Writ of Habeas Corpus as applicable.
In People v. Cook (2015) 236 Cal.App.4th 341,345-346, a claim for jury misconduct must be based on a “reasonable belief that jury misconduct occurred.” More, Pursuant to Cook, a Writ of Habeas Corpus asserting a jury misconduct issue cannot be “speculative, conclusory, vague, or unsupported.”
Commonly, a claim for jury misconduct arises when:
- There is evidence that a jury member did “independent fact finding” or “investigation” on their own, outside the parameters of the pending claim.
- There is evidence that a jury member (one or more) was improperly and personally biased against the defendant, and not adequately challenged in the jury selection process.
- There is evidence that the jury discussed the case with non-jurors. Specifically, they are instructed by the judge not to discuss the case with anyone.
- The jury discussed the fact that the defendant did not testify on his own behalf. On this point, a defendant has a Fifth Amendment right against self incrimination. The United States Supreme Court has previously held that right is for the innocent. A jury cannot even discuss the lack of testimony from the defendant while deliberating. This is specifically out of the jury instruction guide.
A careful review of the record and strong evidence are required to bring about this argument. When brought artfully, it can have immense success in your case and materially impact your conviction and sentence.
Just like there can be prosecutorial misconduct, there can be judicial misconduct. This does not mean a deliberate act on behalf of the judge, at least not always. This can refer to a number of things, including the failure of the Court to ensure the defendant’s attorney is present at all proceedings. The Sixth Amendment of the United States’ Constitution guarantees the right to counsel during all critical stages. And if the Court fails to follow that right, you may be able to seek successfully this argument in a Writ of Habeas Corpus.
Another form of judicial misconduct arises if the Court allowed you to shackled in front of a jury. The jury cannot possibly be impartial to a defendant if the defendant was seen in handcuffs, a prison jumpsuit, shackled, etc. It’s common for juries to convict based on the feeling that the defendant looks guilty, rather than the facts as they are presented at trial. A judicial officer has a duty to ensure this impartiality extends to you and your case.
Unlawful Prison Conditions
California, as well as other states, notoriously suffers with poor prison conditions. A Writ of Habeas Corpus is often a successful tool when you or a loved one are being physically, sexually, or emotionally abused during your incarceration. Lack of medical attention, neglect, and being deprived of food or water are also good Writ of Habeas Corpus arguments. As such, if you meet any of these categories, it is generally recommended that you consult with an attorney as soon as possible to determine whether you have valid arguments to file a Writ of Habeas Corpus.
This is a more nuanced and uncommon argument, but if it is available, it is worthwhile to pursue. This argument refers to when a law is proven to be unconstitutional and it was imposed against you. Generally, there is a Constitutional mandate that laws are not overbroad or vague, so much so, that a reasonable person is unable to tell what is deemed to be criminal conduct. If the law in your case meets that constitutional criteria, then you may be able to be successful in bringing a Writ of Habeas Corpus.
There are many more arguments you can include in a California or Federal Writ of Habeas Corpus. Some arguments not discussed here include new and additional evidence of false evidence, perjured testimony, inmate partner battering, challenge denial of parole, and more. Barhoma Law, P.C., offers free consultations regarding California and Federal Writs of Habeas Corpus. Call us at (213) 855-2956 to determine whether you are a fit for our two-step process.
The Differences between a Direct Appeal and a Writ of Habeas Corpus
Often a Direct Appeal to the California Court of Appeals is confused with a California Writ of Habeas Corpus. They do share a similar function in that they are both post-conviction remedies. However, the two devices could not be more different. Below are some of the major differences between the Direct Appeal to the Court of Appeals and a California Writ of Habeas Corpus:
|Timeline||As provided above, you can bring a California Writ of Habeas Corpus at any time, if you do so without undue delay. If you do delay in bringing a California Writ of Habeas Corpus, you need to prove “good cause” to overcome or justify that delay. However, a Direct Appeal must be Noticed within 60 days of final judgment. If you fail to file the Notice of Appeal timely, you do not have a right to an appeal and may have also lost your right to a Federal Writ of Habeas Corpus, as that has a mandate that you exhaust all state legal remedies. As such, right at the outset, the timing of both devices are very different.|
|Evidence & The Record||
A Direct Appeal to the California Court of Appeals is limited to the trial record. Meaning, if a witness did not testify at trial, their testimony cannot be examined on appeal. The California Court of Appeals almost always looks at the direct appeal with an eye for “abuse of discretion” of the trial judge. This means they are reviewing the rulings, motions, and arguments made at the lower court.
A Writ of Habeas Corpus, on the other hand, allows you to bring in new and additional evidence. That makes the Writ of Habeas Corpus a very desirable device after a defendant has been convicted. If a witness did not previously provide their statement and now they want to provide that testimony, you may be able to present it to the court using the California Writ of Habeas Corpus. More on this, if a previous witness recants or changes their testimony, you can present that as new and additional evidence.
|Jurisdiction and Venue||
A Direct Appeal to the California Court of Appeals is presented to the Court of Appeals, which is very different from the trial court. A court of appeals does not have a jury and no mandate for the client to be present. Further, the court of appeals does not have one judge, but three to five judges who take a general vote in making a ruling on your appeal.
A California Writ of Habeas Corpus, on the other hand, is filed with the California Superior Court. Meaning, it is adjudicated at the trial level first. Again, keep in mind that you can introduce new and additional evidence. And generally, it is the superior court’s role to review and list new evidence/facts. So it makes total sense that the Writ of Habeas Corpus starts there. If you do not like the ruling of the Superior Court on your Writ, you can appeal it to the Appellate Court.
|Right to Counsel||
In a Direct Appeal to the California Court of Appeals, you have the right to counsel. The Sixth Amendment of the United States Constitution guarantees you the right to an attorney through all “critical stages.” This includes some pre-trial hearings and procedures, and it includes the Direct Appeal process. Therefore, if you cannot afford an attorney for trial or a direct appeal, the State will appoint you a public defender.
A Writ of Habeas Corpus is not deemed a “critical stage.” This means that you can hire an attorney, but one will not be appointed to you if you cannot afford one. It is generally recommended that you only pursue a California Writ of Habeas Corpus using the assistance of a skilled post-conviction lawyer. As you can see, the Writ carries many intricacies intended to be navigated by a lawyer.
The Procedure of Filing Your Writ of Habeas Corpus
As previously stated, you should not try to file the Writ of Habeas Corpus yourself. There are many rules surrounding the Writ. Therefore, it is highly recommended you seek the assistance of an aggressive post-conviction attorney.
To begin the process, you generally want to have an attorney review your record to ensure you have valid grounds for a Writ of Habeas Corpus. The last thing you want is to arbitrarily file a Writ without ensuring you have the valid grounds. It will be a waste of time and a waste of money. From there, the attorney will ensure you have exhausted other legal remedies, which is essential in having your petition granted.
Venue is important. Next, you want to determine with your lawyer the appropriate venue of where you file your Writ of Habeas Corpus. Filing with the wrong court will automatically get your Writ of Habeas Corpus dismissed. Depending on your case, you can file with the state court or the federal district. Further, which state court depends on the particular facts of your case.
Your lawyer should work with you to determine which court and on what grounds to file the Writ of Habeas Corpus. If you wish to use California law to support your petition, then you must file the appropriate Writ of Habeas of Corpus with the Superior Court, as discussed above. Alternatively if your writ was denied, you need to work with your attorney to determine which appellate court needs to hear your Writ next. From there, it may even be filed with the Supreme Court of California.
If your Writ is unfortunately denied at the state level and you have exhausted your legal remedies, next you should work with your attorney to determine which United States Federal District is appropriate to hear your Writ of Habeas Corpus.
Generally, you submit your Writ of Habeas Corpus with the support of the Points and Authorities. The Points and Authorities is a well-crafted memorandum that meets the court’s filing rules. It contains all essential and necessary arguments to support your Writ of Habeas Corpus. Further, it could methodically and artfully articulate the evidence and attach the evidence for support. This is absolutely the heart of your Writ of Habeas Corpus.
If the court grants your Writ of Habeas Corpus, it will direct the government an opportunity to submit a response to your Writ. If the government exercises that right, you will have an opportunity to respond to the government’s opposition. From there, after all paperwork is submitted, the court has a number of options on how it proceeds. It can seek an oral argument, where your lawyer and the government will each have the opportunity to argue the Writ in person. If this is available, we almost always invoke this right, as it is a strong and credible moment for you to expand on your case. However, if the court determines it needs nothing further, it may grant the Writ or deny it on the paperwork.
If the court ultimately agrees with the defendant, then it may grant a new trial, find the defendant not guilty, or award whatever relief is requested in the Writ of Habeas Corpus.
How an Attorney Can Maximize Your Likelihood of Success
To be successful on a Writ of Habeas Corpus, skillful representation is absolutely essential. It can be the difference between a long, unnecessary sentence and freedom. At Barhoma Law, P.C., we know what it takes to maximize your likelihood of success in filing a Writ of Habeas Corpus.
Matthew Barhoma, founder of Barhoma Law, P.C., has been successful in vacating conviction in the past. Recently, Matthew Barhoma vacated a life sentence in September of 2019. Mr. Barhoma was also successful in granting a client’s innocence from a wrongful murder conviction in November of 2019. Barhoma Law, P.C.’s success rate is based on a strong desire to handle our cases. Call us at (213) 855-2956 or reach out online to learn how we can handle your California or Federal Writ of Habeas Corpus.
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