Yes. The National Habeas Institute represents clients. Unfortunately we are unable to represent every person who needs a habeas lawyer. If we are unable to represent you or a person you know, we will try to help you find a lawyer. Regretfully, we are not able to guarantee that we will find a lawyer.

The National Habeas Institute has limited staff and resources. As a result, we are not able to take every case that needs assistance. Our inability to represent you does not reflect the strength of your case. Unfortunately, we must turn down representation in many very compelling habeas cases.

The National Habeas Institute is a public charity, meaning it depends upon donations by the general public as well as a mix of grants from governmental and private organizations.

Yes! We are a 501(c)(3) non-profit organization retroactive to Nov. 12, 2018.

First, we don’t do it alone. The National Habeas Institute has partnered with several other organizations to develop and disseminate new standards.

Second, we don’t reinvent the wheel. We begin by researching existing standards. We also reread (and reread again) recent caselaw and law review articles that highlight new developments in the law and practice of habeas. We identify potential ethical issues that habeas lawyers are likely to encounter.

Then, we consolidate all that research and share it with a team of experts. The experts review our research and results. They may instruct us to research more. They may add more issues. They may provide insight into the use of specific language.

Once the experts have deemed the standards acceptable, we ask practitioners to review the standards to make sure they’re practical, because it does no good to provide a set of unworkable rules. This process is akin to the comment process for pending legislation.

Once the practitioners have weighed in, we have the experts take another look at the compiled product that incorporates the practitioners’ recommendations. Then, we publish and teach.

Habeas cases are long and expensive. Frequently, the evidence is old or has been destroyed. The scene of the crime has changed. Buildings that were once there may no longer exist. Family members or witnesses may have died. This does not make habeas impossible, but it does make it more work and more expensive than preparing for a trial or earlier appeal.

On average, the entire habeas process, from the end of direct appeal to the denial of a petition for certiorari on a federal writ of habeas corpus petition takes about ten years. This can be significantly longer depending on the petitioner’s crime and jurisdiction. Because some state habeas processes are slower, the average might be closer to twenty years in that sate.

Many states treat capital and non-capital habeas petitions differently. Non-capital cases may need to move through an intermediate court of appeals, which adds more time. Some states review capital cases more thoroughly than they review non-capital cases, which may make the capital case take longer to process.

The process is long because the work takes a long time. Your lawyer will very likely ask for extensions. A habeas lawyer must reinvestigate a case from scratch, meaning they must review the police file, the trial attorneys’ files, the appellate attorneys’ files, the prosecutors’ files, and the court file. They must then identify the holes in the original case.

For example, if a trial attorney failed to notify the court of petitioner’s mental illness, the habeas lawyer must fully investigate and then explain the petitioner’s mental illness and why it is relevant in court pleadings. This means finding the evidence that shows that the petitioner suffers from mental illness and finding an expert or group of experts who can evaluate the petitioner and confirm that the petitioner suffered from the mental illness at the time of the crime, the time of the trial, or both.  

The habeas lawyer must do this level of investigation for each legal issue that they identify in a case. The process is tedious and requires great attention to detail.

A “successor” or “successor petition” refers to a petition for writ of habeas corpus that is filed after the completion of the first state and federal habeas processes. It is a second, third, forth, etc. petition. A “successor” can also refer to a petition that is filed after the time for filing a timely petition for writ of habeas corpus has lapsed, i.e., a late petition.

Every state is different in how it treats a successor petition. The federal government requires a petitioner to ask and receive permission before filing a successor petition.

Yes and no. A person seeking to file a second or third petition for writ of habeas corpus in the federal court must ask and receive permission to do so. The federal courts are loathe to grant this permission. Some states are equally hesitant to grant permission, while other states are very permissive about successor petitions.

Yes and no. Typically, a person cannot file a first habeas petition in both the state and federal courts. But each state is different.

The federal courts must grant the person permission to file a successive petition, assuming the person has completed the initial federal habeas process or is late in filing their writ of habeas corpus in the federal courts. And each state has its own rules about whether it will permit a successive habeas petition.

“IAC” stands for ineffective assistance of counsel. It refers to the specific claim that the lawyers who handled the case before the current habeas counsel were constitutionally ineffective. The United States Constitution guarantees that each person receives effective representation by their lawyers during the trial and direct appeal.

Maybe. Although a person may plead not guilty by reason of insanity, insanity is a legal term of art and is different than mental illness. Mental illness may provide a compelling explanation as to how or why a person committed a particular crime, which can affect the extent of the person’s culpability. As a result, it may have been essential for the jury to learn about a person’s mental illness in order to understand the entire picture surrounding the crime. If it was essential for the jury to learn about a person’s mental illness, but trial counsel failed to inform the jury of the client’s mental illness, or the prosecution withheld evidence of the client’s mental illness, the client may be entitled to a new trial based on ineffective assistance of trial counsel or prosecutorial misconduct.

A categorical exception to the death penalty refers to a category of people who are ineligible to receive a sentence of death. Currently, there are two categorical exceptions: (1) people who are intellectually disabled and (2) people who were under 18 at the time of the crime.

A “bifurcated trial” refers to a trial with two phases: (1) the guilt phase and (2) the penalty phase. In other words, the sentencing happens after the trial and is a separate process.

Capital trials are typically bifurcated. Usually, the sentencing trial happens immediately after the guilt phase ends, but this varies by state.

The federal system also uses bifurcated trials. In the federal system, both the prosecution and the defense submit sentencing memoranda to explain why a particular sentence is appropriate. The judge will then consider both memoranda and make a decision.

Some habeas lawyers are paid. The federal government appoints habeas lawyers and compensates them for their time up to a limit. Some states use a similar system. Other states depend heavily on law firms and the appointment of pro bono attorneys to assist habeas petitioners.

A habeas lawyer must reinvestigate a case from scratch, meaning they must review the police file, the trial attorneys’ files, the appellate attorneys’ files, the prosecutors’ files, and the court file. They must then identify the holes in the original case.

For example, if a trial attorney failed to notify the court of petitioner’s mental illness, the habeas lawyer must fully investigate and plead the petitioner’s mental illness. This means finding the evidence that shows that the petitioner suffers from mental illness and finding an expert or group of experts who can evaluate the petitioner and confirm that the petitioner suffered from the mental illness at the time of the crime, the time of the trial, or both. The lawyer must also explain why the mental illness is legally relevant because the mental illness by itself does not excuse the crime or sentence.

The habeas lawyer must do this level of investigation for each issue that they identify in a case. The courts may compensate lawyers for their time spent reviewing a case. In addition, the court reimburses lawyers for the costs of hiring experts. Because the process can take decades to complete, the costs can add up, making the cost of habeas quite expensive.

A petition for writ of habeas corpus typically presents claims that a person is being unlawfully confined in violation of the state and/or federal constitution. As a result, the petitioner must assert that some right guaranteed under the state and/or federal constitution has been violated.

 Typical habeas claims include:

Ineffective Assistance of Counsel

Prosecutorial Misconduct

            Juror Misconduct

            Judicial Misconduct

            Intellectual Disability

Cruel and Unusual Punishment

Habeas corpus is an uphill battle. At trial, a defendant is presumed innocent. After conviction, however, a habeas petitioner is presumed guilty, and the conviction is presumed valid. For these reasons alone, winning is unusual.

There are other ways to challenge aspects of a person’s confinement. If there are concerns about particular conditions, the institution may have protocols for alerting the prison management about those concerns. There may be specific forms to complete, etc.

A petitioner may also have a civil rights challenge. Historically, this is where a person might challenge prison conditions or a particular state’s lethal injection procedure. Just as with habeas, civil rights litigation is an uphill battle because the petitioner must prove that an underlying constitutional right has been violated. But a civil rights win affects more than the petitioner; it improves the system for everyone affected by the particular protocol or policy.

Every state is different. Some rules are developed by the state legislature; some by the state supreme court. Others are a mix of both. The National Habeas Institute is working to gather the rules in one location to make it easier to find. Please continue to check back here.

If you are housed in a state institution, check your state rules. You will probably file your initial petition for post-conviction relief with the same judge who oversaw your trial, but this varies from state to state.

If you are housed in a federal institution, file your 2255 petition in the same district court that oversaw your trial.

Yes. Although it may seem strange to have the judge who oversaw the trial be the very same person who reviews the trial for any mistakes, many states and the federal government ask that a petitioner submit the petition for writ of habeas corpus to the same district court that oversaw the original trial. Sometimes, this means a habeas case goes before the same judge. Sometimes, this means that another judge in the same county or federal district will review your case.

It is worth noting that this is not the rule for every state. Some states ask a petitioner to file in the county where the institution is located. Other states point a petitioner to a specific county. Be sure to check the rules!

A habeas investigation is a reinvestigation from scratch. The habeas lawyer needs to conduct an independent investigation to learn about the facts and evidence surrounding the crime. The lawyer also needs to learn the petitioner’s life story and figure out how the crime fits into that story.

The habeas lawyers and their investigative team must comb through police files about this case and any prior cases. They must review the entire trial record and obtain, organize, and review the prior attorneys’ files. They need to learn who the trial lawyers hired and why. For example, if the trial lawyers hired mental health experts but did not use those experts at trial, the habeas lawyer will need to review the trial lawyers’ written notes, meet with the trial lawyer in person to ask about the lawyer’s decisions, and meet with the expert who provided the advice. The habeas lawyer may then decide to meet with additional experts to pursue a second mental health evaluation.

The lawyer reinvestigates the case and scours the records in search of evidence that would help a jury or judge understand the petitioner’s humanity. The lawyer will likely need to talk with family and friends who knew the petitioner before they were confined. The lawyer may meet with people who knew the petitioner as a child, including former teachers, coaches, or religious leaders.

In addition, the lawyer is looking for evidence of constitutional violations. The habeas lawyer cannot invent legal claims. They must have a legal foundation. As a result, as the habeas lawyer is reviewing the record and meeting with potential witnesses, the lawyer is also doing legal research to learn what types of issues exist to help their client.

An evidentiary hearing is like a mini-trial. It is an in-court proceeding where the habeas lawyer presents the evidence that they found to support the writ of habeas corpus. The judge will hear arguments from both sides and decide what evidence is relevant and should be considered as the parties argue for or against the writ of habeas corpus.

Sometimes. This depends entirely on the jurisdiction and the type of proceeding. Usually, the rules will indicate when a petitioner’s presence is required. Rules do not usually indicate whether a petitioner’s presence is optional.