Habeas Corpus/Post-conviction Relief FAQ’S

I’ve compiled a list of questions I am often asked during an initial consultation of a case or throughout my representation and/or review of a case. These answers are general responses and should in no way deter you from calling me even if you find a specific answer to your question. Every case is different and unique. Before you decide that your chance is gone and not worth pursuing, call me so we can discuss.

Why File a Habeas Petition?
A habeas/PCR petition is normally the last full opportunity a prisoner has to explore the facts and circumstances underlying their conviction, whether that was through a plea or after a trial. Habeas/PCR petitions normally represent the last, best chance a prisoner has obtain relief from their conviction, so a prisoner should consider filing a petition if he or she believes that there is a legitimate legal reason why they should not be forced to serve the balance of their sentence.

How long does a prisoner have to file a habeas petition?
The limitations period for filing a habeas petition varies depending on the jurisdiction where it is filed. In Georgia, a petitioner normally has four years from the date their direct appeal was denied to file a habeas petition, but in Virginia, a petitioner only has one year to file a similar petition. In the federal system, a prisoner, whether convicted in state court or federal court, normally has one year to file a habeas petition.

Should a prisoner file a federal or state petition?
Prisoners who were convicted in federal court can only seek relief in the federal courts, but prisoners with state convictions potentially can seek relief in either state or federal court. Federal law requires that most grounds for relief that state prisoner can raise must first have been raised in a state court and that a state appellate court has at least had the opportunity to review those grounds before they can be raised in a federal habeas petition. This means that normally state prisoners should go through the state postconviction process before taking their case to federal court.

What if the state prisoner’s habeas petition takes more than a year to decide?
Although the law governing federal habeas actions normally requires state prisoners to raise and appeal (i.e. exhaust) all issues in the state system first, realistically the prisoner and his attorney(s) will not be able to get through that entire process in a year or less. The federal system acknowledges this by tolling the filing time for a federal habeas action once a state habeas action has been properly filed. “Tolling” just means that the clock stops ticking. So, for example, if a habeas petitioner files a state action six months after their conviction becomes final and does not prevail in their state proceedings or on appeal, he or she will still have six months to file a federal action.

What happens if a state prisoner waits longer than one year to file a state petition?
Some states (e.g. Georgia) allow habeas petitioners more than one year to file a petition. If a state prisoner takes longer than one year to initiate habeas proceedings, he will normally lose the opportunity to file a federal habeas action, even if he has timely filed a state habeas action. This does not affect the state proceedings, but it does mean that he or she will not have the chance to go to the feds if their state action is unsuccessful.

What are the prisoner’s chances of winning a habeas case?
Nobody can forecast the result of a habeas case. Whether or not a court will grant a petition depends on many factors beyond the strength of the case the petitioner has filed.

How long will it take to for the court to make a decision?
Most states do not set time limits within which courts must make a decision in a habeas case. Typically after the parties present evidence and, if there is a hearing, a hearing is held, the court will subsequently issue a written order explaining its decision and the legal basis for it. Decisions can come within a matter of days or can take many months and neither party has the ability to force a court to make a decision, absent a rule or law that requires it to do so.

What happens if the prisoner loses?
Most jurisdictions allow petitioners to attempt to appeal an adverse habeas decision. In many jurisdictions, the appeal is discretionary, meaning the losing party has to ask the appellate court to consider the appeal and the appellate court has to agree to do so before an appeal can even be filed.

Can the prisoner get a more severe sentence if he gets a new trial through a habeas petition?
A defendant who is wins a habeas case cannot receive a more severe sentence after a subsequent trial just because he or she won their habeas case. The law does allow a sentencing court to impose a more severe sentence if it is able to articulate additional factors which were not considered in the first sentence as the motivation for raising the sentence, but cannot do so merely because the defendant won a habeas case which resulted in a second trial/sentencing.

Can they add charges if the prisoner goes back to trial?
It is helpful to think of winning a habeas case as getting into a time machine: winning a habeas case normally means that a petitioner will be placed back in the exact same position as they were in the day before they were convicted and sent to prison. Depending on the jurisdiction, that may mean that the state can bring additional charges related to the same incident when it goes back to the trial court.

Can the prisoner attend his habeas hearing?
Most jurisdictions not only permit, but require, the prisoner to attend his habeas hearing, if there is a hearing.

Can the family attend the prisoner’s habeas hearing?
Not all habeas proceedings are open to the public. Some jurisdictions even hold habeas hearings in the prison where the prisoner is being held. In such circumstances, attorneys, witnesses and court personnel will be present at a hearing, but not family. However, if a habeas hearing is held in a normal courtroom, typically the public, including families, may attend.

Should the prisoner file a habeas petition before filing a direct appeal?
No. Normally a prisoner is required to exhaust their direct appeals before filing a habeas petition anyway and, even if they were not required to do so, it would be the advisable course of action in just about any conceivable set of circumstances.

Can the prisoner come home while the habeas action is pending?
Petitioners who are in prison when they file a habeas action are not entitled to be released while the action is pending.

What issues can be raised in a habeas action?
Normally, habeas petitions are restricted to claims that a prisoner’s constitutional rights are being violated. Most often, prisoners claim that their right to counsel under the Sixth Amendment to the United States Constitution, or a parallel state constitutional provision, has been violated because the prisoner’s trial, appellate or plea counsel was ineffective in representing him or her for one reason or another. Issues which were already raised in an appeal or issues which were previously waived normally cannot be raised, but waived issues may form the basis for a claim of ineffective assistance of counsel.


How long does a defendant have to appeal his conviction?
The time for filing a notice of appeal, which starts the appellate process, varies depending on the jurisdiction. Some courts (e.g. Georgia) give a defendant thirty days from sentencing to file a notice of appeal with the court where they were convicted. Other courts (e.g. the federal system, fourteen days) give a defendant less time to file notice. A defendant should be advised of how long he or she has to file a notice of appeal at sentencing and normally the trial/plea attorney will file a notice of appeal, even if they are unlikely to represent the defendant on appeal, if the defendant requests that they do so.

What issues can the defendant raise on appeal?
In most jurisdictions, a defendant is limited to raising issues which the trial court ruled on in their appeal. For instance, pretrial motions which were denied, objections made during the trial or claims made in a motion for new trial could normally be raised as issues on appeal. Issues which were not presented to the court prior to appeal may be considered waived (and thus not considered at all) or will be judged on a very strict standard by appellate courts.

Does the trial court hear the appeal?
In most jurisdictions, the court which presides over a trial or plea will not also hear the appeal. Many times, it may be helpful or advantageous for a defendant to make a motion for new trial to the same court which presided over the trial/plea, but even if that is denied, defendants normally have the opportunity then to appeal the matter to a different court with different judges.

Does the defendant have the right to be present for the appeal?
In most jurisdictions, defendants do not have a right to be present to hear the arguments in their appeal.

How long does the appellate court take to decide?
Appellate courts normally have a long time to reach a decision on an appeal. In most jurisdictions, the time is set by law or by rules of the court, but can be a matter of several months. This is normally the only constraint on a court’s time to decide an appeal; nobody can force the court to reach a decision on an appeal sooner than what the law or the rules of the court require.

What happens if the defendant wins his appeal?
There are several possible outcomes for a defendant who is successful in appealing an adverse decision. In civil cases, the result is almost always a new trial subject to correction of the error(s) which led to original decision being reversed or vacated. This can happen in criminal cases as well. Additionally, in criminal matters the case can be remanded (sent back) for the trial court to consider specific issues, for resentencing or for a party to put on evidence which was not previously on the record. In some situations, a criminal conviction can be vacated (thrown out), though this is rare.

Can the defendant get a more severe sentence if he gets a new trial through an appeal?
This is addressed in the habeas corpus section and the same answer applies to appeals.