"Habeas Corpus" is a Latin phrase meaning "you have the body," in the sense
that the government is incarcerating a person. In a habeas corpus case, the
prisoner is arguing that their incarceration is unlawful.
As recently as June 14, 2010, in Holland v. Florida, the United States Supreme
Court heralded the legal option of habeas corpus as the "Great Writ, the only
writ explicitly protected by the Constitution."
A habeas corpus litigant must prove that his or her conviction and/or sentence
was imposed in violation of a constitutional right. In Virginia's state courts, the
violated constitutional right must either be or significantly involve the
constitutional right to "effective assistance of counsel." Thus, the basis of most
requests for habeas corpus relief is labeled as "Ineffective Assistance of
Counsel."
In order to show sufficient Ineffective Assistance of Counsel, the habeas litigant
must show that the "performance" of the attorney who mishandled the criminal
case (or the direct appeal) was outside of the range of acceptable actions of a
trial attorney, and that the failed performance was serious enough to have
caused "prejudice" to the outcome of the case.
If these two categories are shown to the court's satisfaction, the resulting
"relief" granted by the court is generally "vacating" the conviction and
sentence, and allowing the case to go back for a new trial. In some situations
(where the conviction and sentence are vacated), the basis of the habeas case
also precludes any new trial.
that the government is incarcerating a person. In a habeas corpus case, the
prisoner is arguing that their incarceration is unlawful.
As recently as June 14, 2010, in Holland v. Florida, the United States Supreme
Court heralded the legal option of habeas corpus as the "Great Writ, the only
writ explicitly protected by the Constitution."
A habeas corpus litigant must prove that his or her conviction and/or sentence
was imposed in violation of a constitutional right. In Virginia's state courts, the
violated constitutional right must either be or significantly involve the
constitutional right to "effective assistance of counsel." Thus, the basis of most
requests for habeas corpus relief is labeled as "Ineffective Assistance of
Counsel."
In order to show sufficient Ineffective Assistance of Counsel, the habeas litigant
must show that the "performance" of the attorney who mishandled the criminal
case (or the direct appeal) was outside of the range of acceptable actions of a
trial attorney, and that the failed performance was serious enough to have
caused "prejudice" to the outcome of the case.
If these two categories are shown to the court's satisfaction, the resulting
"relief" granted by the court is generally "vacating" the conviction and
sentence, and allowing the case to go back for a new trial. In some situations
(where the conviction and sentence are vacated), the basis of the habeas case
also precludes any new trial.
Andrew G. Wiggin, P.C.
Habeas Corpus
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"Serving clients in all litigation after state criminal trials, all across Virginia!"
www.post-trial-litigation.com
(757) 333-7539
(757) 333-7539
Criteria for Instituting a Habeas Corpus Case:
1 - You must not have previously filed a Petition For Writ Of Habeas
Corpus, unless a court ended that case "without prejudice" to refiling at
a later time.
2 - You must have been convicted of a felony and received a penitentiary
sentence.
3 - The deadline for filing your Petition For Writ Of Habeas Corpus is
either two years after the Circuit Court entered your sentencing order,
or one year after the last appellate court issued its final order in your
direct appeal. Whichever calculation gives you the longer period of time
forms the deadline. (In some situations, there are some minor
extensions of these deadline calculations.)
4 - The Petition For Writ Of Habeas Corpus may be initially filed in
either the Circuit Court where the criminal case was heard, or directly at
the Supreme Court of Virginia.
5 - Any "grounds" which you want to raise, must be raised in your one
initial Petition For Writ Of Habeas Corpus. Grounds cannot be added at
a later time.
6 - The selection and phrasing of what grounds to raise in the Petition
requires careful decision making as well as clear understanding of habeas
corpus law and of essentially all aspects of criminal law.
7 - The "Respondent" (the opposing party in a habeas corpus case) is the
"Warden" or the "Director" of the Department of Corrections.
However, neither of those actual persons takes any active role in a
habeas case. An attorney from the Virginia's Office of the Attorney
General becomes opposing counsel and handles all aspects of the case for
the Respondent.
1 - You must not have previously filed a Petition For Writ Of Habeas
Corpus, unless a court ended that case "without prejudice" to refiling at
a later time.
2 - You must have been convicted of a felony and received a penitentiary
sentence.
3 - The deadline for filing your Petition For Writ Of Habeas Corpus is
either two years after the Circuit Court entered your sentencing order,
or one year after the last appellate court issued its final order in your
direct appeal. Whichever calculation gives you the longer period of time
forms the deadline. (In some situations, there are some minor
extensions of these deadline calculations.)
4 - The Petition For Writ Of Habeas Corpus may be initially filed in
either the Circuit Court where the criminal case was heard, or directly at
the Supreme Court of Virginia.
5 - Any "grounds" which you want to raise, must be raised in your one
initial Petition For Writ Of Habeas Corpus. Grounds cannot be added at
a later time.
6 - The selection and phrasing of what grounds to raise in the Petition
requires careful decision making as well as clear understanding of habeas
corpus law and of essentially all aspects of criminal law.
7 - The "Respondent" (the opposing party in a habeas corpus case) is the
"Warden" or the "Director" of the Department of Corrections.
However, neither of those actual persons takes any active role in a
habeas case. An attorney from the Virginia's Office of the Attorney
General becomes opposing counsel and handles all aspects of the case for
the Respondent.
Call Andrew Wiggin at (757) 333-7539, to discuss seeking justice through Habeas Corpus proceedings.
Disclaimer: The information provided on this website is not legal advice. Accessing the information on
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the
legal services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested
persons may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew
G. Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation
in federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the
legal services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested
persons may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew
G. Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation
in federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.