Let’s say your son was convicted of a serious crime, though you believe he’s innocent. You tried to appeal the wrongful conviction, but the courts denied your request. You’re not ready to give up the fight for your son’s freedom—but is there anything else you can do?
The answer is yes.
With the help of an experienced post-conviction criminal defense attorney such as Chris Perri, you may be able to apply for something called a writ of habeas corpus.
In Texas, the courts will typically only consider one writ of habeas corpus per conviction, though there are exceptions. Since, in most cases, you only get one shot, you want to make it count. In this article, we’ll explain everything you need to know about doing so.
First off, what is a writ of habeas corpus?
A writ of habeas corpus (commonly referred to as a “writ”) is an application arguing that a person has been wrongfully convicted, which is against the Texas and U.S. Constitution. The writ argues for the conviction to be reversed.
It’s important to clarify how a writ of habeas corpus differs from an appeal. Both are avenues to overturn convictions, but an appeal can only deal with matters regarding trial errors. For instance, if you feel the judge made an unlawful ruling during your trial, an appeal may help. However, appeals are limited to raising issues directly related to the judge’s rulings at trial.
Further, you only have 30 days after a conviction to decide to file an appeal in Texas criminal cases, and only 14 days in federal cases. If you miss these deadlines, then a writ is your only available option for post-conviction relief. For more information on appeal and writ deadlines, click here.
Unlike an appeal, a writ of habeas corpus allows you to introduce new evidence that wasn’t considered at the original trial or during plea negotiations. If a judge believes this new information proves the conviction was wrongful, then they may overturn the conviction and allow the defendant the opportunity for a new trial.
A writ of habeas corpus is often appropriate if a convicted person can present:
New scientific evidence, including DNA
New witness testimony
Evidence of an alternative perpetrator
Evidence of ineffective of assistance of counsel of trial criminal defense attorney
So, can you only file one writ of habeas corpus in Texas?
The answer here is a bit tricky. Technically, you can file as many writs as you want. However, the reality is that most people only get one chance to have their writ considered.
This is because when you file a writ, you must raise every claim possible at that time. For instance, if your son was wrongfully convicted but you now have scientific evidence to prove it, and you feel his prior attorney was grossly ineffective, you must raise both known issues in the writ. If you only raise one of these issues, despite knowing both, and then try to file a second writ with the second issue, the courts will automatically reject it without considering the merits. They will claim it was your son’s responsibility to raise every issue known at the time he filed the first writ.
A court will only review a subsequent writ if you can show that:
A) There is new evidence, and
B) That this evidence could not have possibly been known at the time of the prior writ application (within reason)
In most cases, the courts do not consider second or third writs, and they are usually dismissed automatically. True, there are exceptions, such as if new technology has been developed that can provide compelling DNA evidence that was not previously available, or if there’s been a new confession by an alternative perpetrator, but these incidents are rare.
Your best bet is to hire a proven and meticulous writ attorney in Austin, Texas from the start. You need someone like Chris Perri, who can raise every possible issue as persuasively as possible on your first writ, as there is a high likelihood that no future writs will be considered.
My first writ of habeas corpus was denied. Is my fight for freedom over?
This is a tough question. If you really want to raise issues on a second writ, you must have new evidence that wasn’t available when you filed your first writ. If you don’t know of any new evidence, but believe there may be some out there, it may be useful to hire a private instigator. Chris Perri Law has extensive experience helping people analyze their cases to see if any new issues can be raised. In fact, we frequently work with private investigators and can help you with that investigative process, by, for example, working with private investigators to interview newly-discovered witnesses.
If you are unsure if your case still has issues to be raised through a writ or appeal, then reach out to our firm. We can help you assess your options and chance of success. Though we rarely take on second or third writs of habeas corpus, there are always exceptions.
Chris Perri Law Is Here to Help
A wrongful conviction doesn’t mean all hope is lost. Though reversing a conviction is an uphill battle, a determined and experienced criminal defense attorney may be able to help.
As an award-winning lawyer based in Austin and practicing all over Texas, Chris Perri has successfully helped clients overturn wrongful criminal convictions through appeals and writs of habeas corpus. Navigating the criminal justice system, especially after a conviction, can be harrowing, but you don’t have to go through it alone. Whether the case is federal or state level, call Chris Perri Law at (512) 269-0260 or visit www.chrisperrilaw.com to schedule a free case consultation today.