Mirror of Justice

Difference Between an Appeal and an Application for Writ of Habeas Corpus

July 9th, 2009 at 06:19pm Under Appeals and Writs

People are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus.

APPEALAn appeal (also known as a “direct appeal”) is taken immediately after a conviction and sentence. A person generally required to file a brief statement with the court called a “Notice of Appeal” within a short time after he is convicted. For example, with some limited exceptions, a Notice of Appeal must be filed within 10 days after a person is sentenced in a federal case and within 30 days after a person is sentenced in a state court case in Texas.

An appeal is limited to what is “in the record.” In other words, if an issue was not brought up through a pre-trial motion or at trial, it generally cannot be raised on direct appeal (of course there are some exceptions to this rule). Generally, in order to have the possibility of winning an appeal, three things must have happened: (1) The trial judge must have committed an “error” (i.e. did something he should not have done or did not do something he should have done); (2) The defense lawyer objected to the error at the time it was made; and (3) The error was harmful (i.e. the error might have affected the conviction or sentence).

There are four possible outcomes from an appeal: (1) The conviction and sentence can be affirmed; (2) The defendant (called the “appellant” on appeal) can be given a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The defendant’s conviction can be overturned and he cannot be retried.

In the federal system, an appeal is taken to one of the twelve courts of appeals. For example, a person convicted in federal court in Texas, Mississippi or Louisiana takes an appeal to the United States Court of Appeals for the Fifth Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a written brief, arguing the issues to be raised on appeal, to the Court of Appeals. The government is given an opportunity to respond with its own brief and then the Appellant can file a reply brief to the response. Often times, but not all the times, the lawyers will be called to New Orleans to argue the issues raised on appeal Eventually the Court of Appeals will render its decision in the form of a written opinion. While the time can vary greatly, generally speaking, it takes about 9-18 months from when a Notice of Appeal is filed to get a decision from the United States Court of Appeals for the Fifth Circuit. If either side is not happy with the result of the appeal, that party can file a Petition for Writ of Certiorari with the United States Supreme Court asking the Supreme Court to consider the case. Unlike, the Court of Appeals, the Supreme Court does not have to consider the case and, indeed, it considers less than one percent of the cases it is asked to hear.

In Texas, and in most other states, an appeal is taken to a state court of appeals. In Texas, there are fourteen courts of appeals. Like in the federal system, an appeal is decided by a three judge panel of the particular court of appeals that hears the case. The party that lose a criminal appeal in a Texas court of appeals can then ask the Texas Court of Criminal Appeals (essentially the Supreme Court in Texas for criminal cases) to consider its case by filing a Petition for Discretionary Review. Like the United States Supreme Court, the Texas Court of Criminal Appeals is not required to hear all the cases it is asked to hear. If the Court of Criminal Appeals refuses to hear the case or if it does hear the case and a party is not satisfied with the outcome, a Petition for a Writ of Certiorari can then be filed with the United States Supreme Court asking it to consider the case. Again, however, the Supreme Court considers less than one percent of the cases it is asked to hear

APPLICATION FOR WRIT OF HABEAS CORPUS

An Application for a Writ of Habeas Corpus can be brought if a person loses his direct appeal or if he elects not to pursue a direct appeal. Generally speaking, this procedure is used to raise issues that were not in the record and, therefore, issues that could not have been raised on direct appeal. In most states and in the federal system, the issues must be related to a denial of a constitutional right. An overwhelmingly large majority of applications for a Writ of Habeas Corpus allege that a persons’ trial lawyer and/or appellate lawyer was ineffective.

The “motions and briefs” page of our main website contains examples of some of the applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of the issues that can be raised in such applications. Motions & Briefs

There are strict time limits for filing an Application for a Writ of Habeas Corpus (also called a 2255 motion) in federal court. The application must be filed within a year after a person’s conviction has become “final.” “Finality” of a conviction is complicated topic so person should consult with a lawyer to determine when his conviction became “final.” If the application is not filed within the one year time limit, it will be almost impossible to further contest a conviction in federal court.

Time limits, if any, to file an Application for a Writ of Habeas Corpus in state courts vary from state to state. In Texas, for example, there is no time limit in non death-penalty cases for filing an application (also called an 11.07 writ). Nevertheless, if a person does not obtain relief after filing an Application for a Writ of Habeas Corpus in a state court, they can raise the same issues in federal court despite the fact that they were originally convicted in a state court (this is called a 2254 motion). A 2254 motion must be brought within a year after a person’s conviction has become “final.” Again, “finality” of a conviction is complicated topic so a person should consult with a lawyer to determine when his conviction became “final.” Nevertheless, the time that a state writ is pending is not counted against the year time limit.

Generally speaking, a writ of habeas corpus is a person’s last shot at attacking their conviction. Nevertheless, there are many procedural traps and strict time limits involved with filing applications for such writs. Therefore, a person considering such a writ is well advised to speak to an experienced post-conviction lawyer to discuss the possibility of filing such an application.

CONCLUSION

Again, our firm has found that people are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that an example might further help people understand the difference.

Suppose a person is charged with murder in Dallas, Texas and it is uncontested that the murder occurred in Dallas on August 20, 2008 at 1:00 pm. Further suppose that the person charged with the murder can establish that he was with seven priests in Boston, Massachusetts on August 20, 2008 at 1:00 pm (Dallas time) and that he gives his trial lawyer the name and contact information of these priests.

If the lawyer tries to call these priests as witnesses at trial and the judge does not allow it, this issue could be raised on direct appeal. The reason it can be raised on direct appeal is that it will be in the trial transcript (i.e. it will be “in the record”) that the defense lawyer tried to call the priests as witnesses and the trial judge did not allow it. Therefore, a court of appeals can consider whether the trial judge was right or wrong in the ruling he made.

On the other hand, suppose the lawyer never contacts the priests and never mentions the priests during trial. Well, then, there is nothing “in the record” about the priests for a court of appeals to consider. Remember, a direct appeal, is limited to what is in the record and, generally, nothing outside the record can be raised on direct appeal. Nevertheless, a person could file an Application for a Writ of Habeas Corpus alleging that he was denied his constitutional right to effective assistance of trial because his trial counsel did not contact the priests and call them as witnesses and that, as a result, he was convicted because the jury did not know he had a solid alibi.

At Broden & Mickelsen, a good portion of our practice is dedicated to direct appeals and applications for writs of habeas corpus. For example, Clint Broden, alone, has handled over sixty appeals before the United States Court of Appeals for the Fifth Circuit, and has argued over thirty cases before that court. Nevertheless, we also try to be completely honest with our clients and the reality is that, after each step of the process, it becomes harder and harder for a defendant to win relief. Sadly, there are many times when a client could easily have won his case at a trial and comes to us after they have been convicted because they were not happy with their trial lawyer. Simply put, it is important to have a good lawyer at trial so that an appeal or an applications for writs of habeas corpus never becomes necessary. At Broden & Mickelsen, we handle federal trials throughout the country (having been involved in trial court cases in Texas, California, Illinois, Indiana, Iowa, New Orleans, Georgia, Florida, Louisiana, Ohio and New Jersey) and state trials throughout Texas. We firmly believe that to be a good trial lawyer you must also be a good appellate lawyer and that to be a good appellate lawyer you should be a good trial lawyer. In the end, we are confident that our record at trial and the number of times we have heard a jury say “not guilty” speaks for itself.

How to Apply for Adoption Under the Pennsylvania Adoption Law

July 9th, 2009 at 06:19pm Under Adoption Law

As with any adoption in any state, Pennsylvania adoption law can be a very long process. If you are to have a smooth adoption process, it is always best to learn how to id in the right manner. Use the Pennsylvania adoption law as your guide for your adoption application.

When you are applying for adoption under the Pennsylvania adoption law, the first step to know is which agency you is ideal for making your application. Under the Pennsylvania adoption law, public and private adoption agencies are and licensed by the Pennsylvania Department of Public Welfare (DPW). These agencies are authorized, in various capacities, to help in the facilitation of the placement of an adoptive child into a permanent. Learning about how these agencies work is another important key to your application.

There are three licenses that may be issued to adoption agencies under the Pennsylvania adoption law. These three licenses are:

- The Full Service License – DPW issues this license both to private and public adoption agencies and gives them the authority to assume care and custody of an adoptive child. Asides this, a full-service adoption agency may also provide other services like placing a child up for adoption, initiating the evaluation of prospective adoptive parents; and supervising the placement of an adoptive child into a new permanent home.

In the Texas adoption, full-service agency, the agency is given the authority under the Pennsylvania law to withdraw a child from what may be deemed an unhealthy and unsuitable adoptive home environment. The agency can also proceed with steps to relocate him or her to a better and more caring permanent home.

- Non-custodial License Agency- This license allows certain adoption agencies to work hand in hand with public or private full service agencies by specializing in certain areas of the adoption process. They may act as intermediaries between a full service agency and the birth parents, the adoptive parents and the agency, as well as between both the birth and adoptive parents.

Non-custodial adoption agencies also assist in the adoptive placement process. They offer follow-up and support services as well, especially after the child has been placed into their permanent homes. Certain services, under Pennsylvania adoption law, are our of non-custodial licensed-adoption agencies. They may not remove a child from an unsuitable home environment, nor are they authorized to assume the care and custody of a child, as well as initiate adoptive placement processes.

- Inter-country License – This license is issued by DPW as an additional suite of services under the Pennsylvania adoption law. The inter-country license allows these agencies to initiate final adoption proceedings that would allow placement of foreign-born children into permanent domestic homes. If you are interested in adopting a child from Asian countries such as Korea, China, or the Philippines, you may only do so with a private agency, because under Pennsylvania adoption law, these are the only agencies that may provide these services.

Getting the right adoption agency means going to one that is authorized and licensed under the Pennsylvania adoption law. It ensures that you have not overstepped your own boundaries, and that your future son or daughter’s welfare has been taken cared of before they are placed with you.

Understanding the Value of Admiralty Law

July 9th, 2009 at 05:38pm Under Admiralty Law

In this day and age, Admiralty Law seems like a thing of the past to those who are not directly affected by its principles. Also known as maritime law, this principle governs everything from shipping to wharf operations to recreational rules and regulations. Without Admiralty Law, the waterways and oceans would become a place of pandemonium and “might makes right” seamanship. Obviously, these laws were put in place for a reason.
Despite the fact that many people of this day and age don’t realize the implications of piracy on the waterways, especially international waterways. Piracy falls under the areas of inclusion where Admiralty Law is concerned. All too often those affected by piracy end up feeling powerless against their intruders and never really effectively deal with the impact of piracy.
While the movies may make piracy out to be a beatable force with a little determination and creativity, in reality, a man with a machine gun at your face isn’t something that can be deterred by swinging ape like around on the boom. While most cases of piracy are never prosecuted, there are a few cases on the books that prove that a little evidence and a high quality maritime injury attorney can change the outlook of someone who has been abused by piracy.
Maritime law, or Admiralty Law also extends to disputes regarding recreational accidents. This mean when the uninsured yahoo who has had way too much to drink, anchors in forward, skips the backing down, and launches himself merrily into another beer shouldn’t be surprised when the boats downwind of him rely on a maritime injury attorney to recoup the damages caused by his boat at three in the morning when the wind kicks up and he breaks free.
Of course, breaking free can happen to anyone, but anyone who has spent any time on the water knows that there are preventative measures and there are encouraging measures. Maritime injury lawyers are flooded with cases stemming around those who forgot to take their preventative measures.
Injury at sea is also included under Admiralty Law. This applies mostly to those who make their living on the water in one form or another, as well as to principles of safety involving merchant sea-persons and the U.S. Coast Guard. It also applies to the skipper who is taking an overloaded boat out for a day sail and for whatever reason drifts off into a day dream or takes his attention away from his responsibilities, backwinds the sail, and sends one of his crew members for the day careening into the waters, where if he’s lucky enough to stay conscious he may only have a concussion to deal with.
Maritime injury lawyers usually do a reasonable consultation on these types of cases to determine fault, evidence, and if the case is tri-able in the long run. Injury at sea can be very serious and costly for both recreational boaters and those who earn their paycheck from the water. No injury at sea should go without a consultation by a maritime injury attorney.
Admiralty Law as it applies to the injury at sea goes hand in hand with the Jones Act. The Jones Act was determined to be the ruling government of issues relating to injuries that occur on the water or along the water’s edge basically, that was a direct influence involving monetary gain. This means that dock workers, commercial fishermen, merchant sea-persons, and even barge construction crews all fall under the Jones Act protection laws.
If a worker is injured while earning a living at sea or a sea related activity, they really should immediately contact a maritime injury lawyer to determine if their case is relevant to the Jones Act. If it is, they should acquire specialized representation, as there are different rules and regulations regarding the Jones Act as it applies to injured workers when compared to regular worker’s compensation. These differences are very important and they should be explained by a down to earth maritime injury lawyer.
Of course, there are thousands of situations that apply to the Jones Act and Admiralty Law. There simply isn’t the capacity to cover them all in one article, or even a dozen for that matter. The bottom line is pretty simple, if it relates to an injury at sea or other damage caused by negligence or a preventable situation, the type of lawyer a person chooses does matter.
While a recreational sailor can hold a drunken anchoring job accountable for damages to his boat under either the Admiralty Law or through a regular attorney for negligent behavior. The laws and standards of proof are a bit different from each other and one should consider very carefully before deciding which way to go. Just because as a society we are more familiar with lawsuit derived from negligence claims doesn’t mean that this is the better alternative.

Ms. Ulery and Her Do it Yourself Loan Modification with BankAmerica – Feldman Law Center

July 9th, 2009 at 05:38pm Under Administrative Law

Feldman Law Center – Eileen Ulery wasn’t a real estate speculator. She was an executive assistant at Arizona State University that bought a condo in Mesa, Arizona for $77,000 in 1997 where she had lived ever since. Several years and a couple of refi’s later, her mortgage balance was up to $140,000 and then the bottom fell out. University budget cuts resulted in the elimination of her job, which she had held for over twenty years. With some severance pay and social security she was able to keep up but once the severance ran out, her mortgage payment was more than she could handle.After hearing about the Obama Administration’s new “Making Home Affordable” plan she went to the CountryWide (now part of Bank of America) website which directed her to the official government site for the program, makinghomeaffordable.gov. After taking a test at the site to determine her eligibility she was informed that she might qualify for a loan modification.    Calling the bank in April to start the loan modification process, the bank’s representative said that the bank was not doing loan modifications for “people like her”. The rep then countered with something the bank could do for her; if she could write them a check for $18,000, they would raise her interest rate slightly, and she could save $77 dollars per month. $13,000 would go toward her loan balance and $5,000 would go to the bank as fees to re-do the loan. The monthly savings would come from the reduction of her loan balance.Jenni Engebretsen, spokesperson for the Treasury, confirmed that homeowners like Ms. Ulery who are current on their mortgages but struggling with the loss of a job are eligible for loan modifications under the program. Eligibility, however, does not mean anything in terms of getting a loan modification done if the lenders are dismissing every do it yourself borrower that is not on the brink of imminent foreclosure. Rick Simon a spokesman for Bank of America Home Loans, confirmed as much when he said “The bank is now focusing on modifications only for those borrowers who are already in severe threat of foreclosure.” After acknowledging that Ms. Ulery had been offered a refi instead of a loan modification he said, “We’re still putting the systems in place to handle people who are current on their loans. It’s still very, very early in the program.”Ms. Ulery’s experience in attempting to modify her own loan is not unusual. In fact it’s quite common that lenders will counter a loan modification request with either an offer to refinance or to set up a payment plan requiring higher monthly payments. Both types of offers do nothing for the borrower while providing the lender with higher interest, fees, and higher principle payments.Asked whether she took the bank up on its offer to refinance her home Ms. Ulery said, “I just laughed. It was a really good deal for them.”

“We’re still putting the systems in place to handle people who are current on their loans,” Mr. Simon said, declining to say how many loans Bank of America had modified. “It’s still very, very early in the program President Obama promise that help was on the way for homeowners like her, people who had lost jobs and could no longer make their mortgage payments.Yes, she was teetering toward delinquency. She was among millions of homeowners rapidly sliding toward danger for whom the Obama administration had devised an aid program — some already in foreclosure proceedings, others headed that way as they ran out of means to make their payments. But unlike those in imminent peril of losing their homes, Ms. Ulery had never missed a paymentMore than three months after the Obama administration outlined a new program aimed at rescuing millions of distressed homeowners by compensating banks that modify mortgages, Ms. Ulery’s experience illustrates the mixture of confusion, frustration and limited assistance that now reigns.Through many months of wrangling over the fate of the financial system, with hundreds of billions of taxpayer dollars dispensed on bailouts, distressed homeowners have waited for their own rescue amid talk that it was finally on the way. Modifications of so-called subprime and Alt-A mortgages — those made to people with tarnished credit — actually fell by 11 percent in May from April, according to research by Alan M. White at Valparaiso University School of Law. The bank is now focusing on modifications only for those borrowers “who are already in severe threat of foreclosure,” he said. “I just laughed,” Ms. Ulery said. “It was a really good deal for them.”

MESA, Ariz. — She had seen the advertisements for the new government program offering relief. She had heard President Obama promise that help was on the way for homeowners like her, people who had lost jobs and could no longer make their mortgage payments.But when Eileen Ulery called her mortgage company — Countrywide, now part of Bank of America — the bank did not offer to alter her mortgage. Rather, the bank tried to sell her a new loan with a slightly lower monthly payment while asking her to pay $13,000 toward the principal and a fresh $5,000 in fees. Her problem was that she did not yet present a big enough problem to merit aid. Yes, she was teetering toward delinquency. She was among millions of homeowners rapidly sliding toward danger for whom the Obama administration had devised an aid program — some already in foreclosure proceedings, others headed that way as they ran out of means to make their payments. But unlike those in imminent peril of losing their homes, Ms. Ulery had never missed a payment.“I don’t know who this bailout is helping,” she said. “We’ve given these banks all this money and they’re not doing what they say they’re doing. Something’s not working right. They keep saying they’re doing all this, but we don’t see it down here at this level.”More than three months after the Obama administration outlined a new program aimed at rescuing millions of distressed homeowners by compensating banks that modify mortgages, Ms. Ulery’s experience illustrates the mixture of confusion, frustration and limited assistance that now reigns.Through many months of wrangling over the fate of the financial system, with hundreds of billions of taxpayer dollars dispensed on bailouts, distressed homeowners have waited for their own rescue amid talk that it was finally on the way. Modifications of so-called subprime and Alt-A mortgages — those made to people with tarnished credit — actually fell by 11 percent in May from April, according to research by Alan M. White at Valparaiso University School of Law. A Treasury spokeswoman, Jenni Engebretsen, confirmed that homeowners like Ms. Ulery — current on their mortgages yet grappling with a hardship like unemployment — were eligible for loan modifications under the program. She said mortgage servicers had offered to modify more than 100,000 loans since the department announced the program.But how many loans have been modified? Ms. Engebretsen declined to say, noting that the Treasury was working with mortgage companies to “fine-tune reporting systems.” A spokesman for Bank of America Home Loans, Rick Simon, confirmed that the bank offered Ms. Ulery refinancing and not loan modification. The bank is now focusing on modifications only for those borrowers “who are already in severe threat of foreclosure,” he said.“We’re still putting the systems in place to handle people who are current on their loans,” Mr. Simon said, declining to say how many loans Bank of America had modified. “It’s still very, very early in the program.”Ms. Ulery, 63, is the face of the latest wave of troubled American homeowners, a surge of people in financial danger not because of reckless gambling on real estate, but because of lost income.Far from being one of those who used easy-money loans to speculate on homes proliferating across the desert soil of greater Phoenix, she has lived in the same modest, stucco-sided condo in suburban Mesa for a dozen years. She bought the two-bedroom home in 1997 for $77,500.For two decades, she worked as an executive assistant at nearby Arizona State University, bringing home more than $1,000 every other week — enough to pay the bills.Round-faced, wry and given to staccato bursts of laughter, Ms. Ulery regularly visits yard sales, seeking out plates and patchwork quilts for her collections. She takes pleasure in her two grandchildren and her beagle. She enjoys an occasional glass of wine, favoring a $6 merlot that comes in a screw-top bottle.“I’m not an extravagant-type person,” she said. “I see these big houses all around, and they’re beautiful, but I’m comfortable in my little condo.”Like tens of millions of other American homeowners, she added to her mortgage balance as the value of her condo swelled, at one point exceeding $200,000. She refinanced to pay off some credit cards and settle into a 30-year, fixed-rate loan. Later, she took out a home equity line of credit to buy a new Hyundai. She refinanced again in 2007, borrowing $20,000, mostly for a new roof. Over the years, her monthly payment swelled from about $600 to more than $1,000. With planning and self-control — she tracks her monthly expenses on a color-coded spreadsheet — she always came up with the money. “I’ve never been late,” she said.But the equation broke down last year, when she lost her job in university budget cuts. Ms. Ulery received six months of severance. She arranged a monthly $1,500 Social Security check. But when the severance ran out in October, her mortgage finally exceeded her limited means.With so many people out of work, and with her doctor counseling rest for a stress-related illness, she did not pursue another paycheck, negotiating to have her university pension begin earlier. She has been leaning on credit cards.Across the country, millions of homeowners in similar straits have been sliding into delinquency. Some owe more than their houses are worth. Ms. Ulery is among that unhappy cohort — her house is worth about $122,000, and she owes $143,000 — but walking away is not for her.“In my family, we don’t do that,” she said. “You pay your bills. And I wanted my home.”In March, she heard about the Obama administration program. The Countrywide Web site directed her to a government site, makinghomeaffordable.gov, she said. There, she took a test to determine her eligibility for a loan modification.Was her home her primary residence? Check. Was she having trouble paying her mortgage? Check again, and so on until the screen told her that she might qualify.In April, she called the bank. The representative said the bank was not doing modifications for people like her, she recalled. He shifted the conversation: if she handed over $18,000, he could lower her payment to $967 from $1,046. Her interest rate would actually increase slightly, with the drop largely because she was putting down more money.“I just laughed,” Ms. Ulery said. “It was a really good deal for them.”To which she poses her own question: What sort of deal is it for the American taxpayer? As she sees it, the same banks that generated the mortgage crisis are now getting public money to fix it, while doing little more than seeking new fees.“I don’t think the government gets it,” she said. “These are the same people you couldn’t trust before.”