What Is a Writ of Habeas Corpus? When Is It Used?

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A writ of habeas corpus is a legal document that claims your freedom has been restricted (whether because you’re in jail or on bond for a crime) in violation of your constitutional rights. There are two types of writs of habeas corpus: pretrial writs of habeas corpus and post-conviction writs of habeas corpus. They are very different.

Pretrial Writs of Habeas Corpus

A pretrial writ of habeas corpus is filed before trial. Because it’s filed before you’ve even been convicted, there are a limited number of arguments that can be raised in a pretrial writ of habeas corpus.

One claim is that your bond is unreasonably high. The Texas Constitution says that you can’t set someone’s bond high just to keep them in jail. There are different factors that you have to look at in setting someone’s bond. For example, let’s say you have no criminal history and you’re charged with robbery and the judge sets bond at $500,000. That’s an unreasonably high bond in general, but especially for someone with no criminal history. Your lawyer can file a pretrial writ of habeas corpus to have your bond lowered to a reasonable amount so you can get out of jail.

Other, less common, claims you can raise on a pretrial writ of habeas corpus include arguing that the statute you’ve been charged with is unconstitutional, that the statute of limitations has run, or that your prosecution barred by double jeopardy.

Post-Conviction Writs of Habeas Corpus

A post-conviction writ of habeas corpus is filed after you’ve finished your direct appeal. It’s a legal document that argues that your conviction violated certain of your constitutional rights.

The most common claim that is raised in a post-conviction writ of habeas corpus is ineffective assistance of counsel. Your habeas lawyer argues that your trial lawyer didn’t do something that a competent lawyer would have done and that his failure to do that thing made it more likely for the jury to find you guilty. These include things like failing to talk to certain witnesses, failing to investigate your case, or failing to make certain types of objections at trial. Most people don’t realize that their lawyer has been ineffective until after the case is over when they’ve hired a second lawyer to look into what the first lawyer did. You can even raise an ineffective assistance of appellate counsel claim and argue that your appellate counsel didn’t make an argument that could have resulted in your conviction being overturned.

Writs of habeas corpus are often used to challenge guilty pleas, since a guilty plea usually includes a waiver of direct appeal. Ineffective assistance of counsel claims can be used to challenge guilty pleas. For example, your lawyer may have not investigated your case and uncovered evidence that would have helped you or may not have made an obvious legal argument that could have caused your case to be dismissed.

Your habeas lawyer might be able to raise a claim of “involuntary plea,” which is an argument that your lawyer didn’t fully inform you of certain negative consequences of pleading guilty that, had you known about, you wouldn’t have pled guilty.

These aren’t the only arguments that can be made. Your lawyer may be able to argue that newly discovered evidence of innocence should cause the verdict to be overturned, or that the prosecution failed to disclose evidence that would have helped you at trial.

Habeas is a complex and specialized area of law, more so than appellate law, and this isn’t an exhaustive list of all the claims you can raise. It’s always best to talk with a lawyer who does habeas writs to find out what, if any arguments, might be available to overturn your conviction.

For more information on Writs of Habeas Corpus in Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (713) 936-4521 today.