Habeas Corpus

When the main or “direct” appeal has failed, the fight isn’t necessarily over.  Both Georgia law and federal law allow further attacks on a conviction or sentence through habeas corpus, which is a lawsuit against the State or prison warden demanding freedom from unlawful confinement.  If the conviction was in state court, the habeas case must be filed in the Superior Court of the county where the person is incarcerated, not where he or she was tried.  If the conviction was in federal court, the post-appeal motion will stay in the court where the conviction happened, and will probably be what is called a Section 2255 motion.  Both state and federal habeas cases can, and usually do, involve appeals to higher courts, whether we have won or lost in the first court.

Plenty of experienced criminal lawyers never touch habeas matters, and because habeas may be the last chance to reverse a conviction, these cases are very challenging.  They are often based on evidence that one or more of the attorneys who previously worked on the case made serious, harmful errors, and they can involve starting from scratch and investigating the case all over again, just as if it were going to trial.  Habeas actions are controlled by strict and confusing rules about when the case must be filed, which legal arguments can be made, and what kind of evidence is permitted.  Because so many traps exist that can throw a case out of court, I often begin by taking these cases for an initial review only — to make sure there is at least a chance of improving the client’s situation before I am “fully” retained to file the case.

State prisoners may also file federal habeas corpus petitions after presenting their claims to the state courts.  But the deadline for filing these actions is very tight and will depend on the facts of the case.  If you lose your appeal and want to keep fighting, contact an attorney immediately.  The clock is probably running already.