Direct Appeals in Criminal Cases
Criminal Trials and Sentencing Hearings
A habeas case (seeking a writ of habeas corpus) is an extraordinary remedy designed to test the validity and legality of detention or incarceration. Most habeas cases -- especially in Virginia -- allege some type of ineffective assistance of counsel or misconduct by the prosecution or police. Generally speaking, a habeas case will include claims that the petitioner's constitutional rights were violated by the trial or appellate attorney, or the prosecutor, or the police, or the jury (if any), or the judge.
Habeas cases are very difficult to win, and numerous procedural hurdles must be cleared before a court will even consider the merits of the claims. Indeed, habeas investigation and litigation is a highly specialized area of the law, and it can be extremely frustrating, expensive, and time consuming. Nonetheless, it often represents the last chance a person has to request judicial review of their convictions and/or sentences.
One of the most important things to know about a habeas case is that there are very strict deadlines for filing a habeas petition regarding criminal convictions from a state court in Virginia. There also are deadlines for filing in federal court.
The state habeas statute of limitations in Virginia Code Section 8.01-654(A)(2) (non-capital cases) requires that habeas petitioners file within two years from the date of the final order in the trial court or within one year from the final denial of the direct appeal in state court, whichever is later.
The one-year federal habeas statute of limitations in 28 U.S.C. 2244(d)(1) (non-capital cases) starts to run after direct appeals have been exhausted, including a direct appeal to the United States Supreme Court, if any. The federal statute of limitations is tolled (i.e., does not run) while a petitioner pursues a state habeas case. See 28 U.S.C. 2244(d)(2).
To be safe, all potential habeas petitioners should file within one year of the date that the Virginia Supreme Court denies the direct appeal, because such action likely will preserve a petitioner's right to pursue habeas relief in federal court. If there is no appeal for whatever reason, petitioners should file within one year of the date of the sentencing order from the trial court, although filing within such a time frame can be difficult.
David B. Hargett, Esq. has been handling habeas cases and criminal appeals in Virginia state and federal courts since 1996. Mr. Hargett strives to provide clients and their families high quality services personalized for their unique needs. Hargett Law offers free consultation on the following areas of practice.
Every criminal defendant convicted in the Circuit Court has a right to file a Petition for Appeal in both the Court of Appeals and the Supreme Court of Virginia. Success on appeal can come in the form of winning a new trial or new sentencing hearing, or, depending upon the case, even a complete dismissal of the charges.
For anyone awaiting trial, sentencing, appeal, or transfer to the Department of Corrections, this may be the most important time in your life. Whenever possible, you should learn your rights so you can, when appropriate, exercise your rights. Because each criminal case is unique, you likely will need to rely on your attorney to properly and timely assert your rights and represent your best interests.
Other Post-Conviction Remedies
In Virginia, it is difficult to get a conviction and/or sentence overturned; however, some avenues are available, including: motions to modify sentence, withdraw a guilty plea, or grant a new trial; actual innocence petitions based on newly discovered evidence (either new DNA testing or new non-biological evidence); motions to vacate based on lack of jurisdiction; annual parole reviews; clemency petitions; and time computation disputes.
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