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Joshua Sachs

Joshua Sachs’s Answers

4,606 total


  • What form do i need to file a habeas corpus motion challenging the constituionality of my conviction and sentance.

    I have already served the time, can I still challenge my conviction? Also do I need an attorney?

    Joshua’s Answer

    Are you asking about federal habeas corpus or state habeas corpus? If it is Washington state habeas, I defer to my Washington colleagues. If you are asking about a federal habeas corpus petition to challenge a state court conviction, there is a form for a Section 2254 habeas corpus petition available from the clerk of the federal district court.

    But be warned. The form is not going to do you much good. The federal court wants to use its court form because the form will require you to answer in detail all of the myriad basic procedural status questions that the judge will need to know, so you are less likely to overlook important background material. But when it comes to the critical part, stating your claim in a clear and persuasive manner, the form leaves you on your own and just tells you to explain your claim, which is as much use as if it said, "All right, now what do you have to say for yourself."

    You are in a bind, I am afraid. Federal habeas corpus is ferociously complicated and difficult. Even among fine and experienced criminal defense attorneys, relatively few lawyers are really at home with this kind of litigation. And it is not easy to get counsel appointed. Ask the clerk for the form (it may be available on line from the clerk's office, too) and do your best.

    My recollection is that you can still file a federal habeas if you have served your prison sentence, but if you have been discharged from all restraint (prison, parole, etc.) and your sentence is completely served then you may have a problem. But don't trust me on that one. I have not looked it up in a long time.

    Good luck.

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  • What are the chances of early termination of probation being denied even with PO stating she is behind me 100%

    Ive been on house arrest since oct 16, 2014. my one year is currently approaching to be let off. however, i am due for another full year of probation once my house arrest is complete. since i have been completely compliant my officer has asked me ...

    Joshua’s Answer

    From a judge's point of view there was a reason that you got a year of house arrest to be followed by another year of probation. Yes, it is good that you have obeyed your conditions, but after all that is what you were supposed to do, and what you had to do to keep from having your probation revoked altogether. An easy-going judge might grant you early termination, but you can't just get it for the asking. Your PO's support obviously will help, but it is the judge, not the PO, who decides. The facts of your case will make a difference, too. Better talk to a local attorney who knows something about how your judge looks at this kind of request. Good luck, but there is no certainty here.

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  • Can I get a speeding ticket dismissed if the police officer did not write down the color of my vehicle and also lost sight of me

    I was around a corner out of the sight of the officer still driving and it took him about 45 seconds for him to finally catch up to my vehicle. I passed him at night and didn't notice him till he turned on the lights

    Joshua’s Answer

    Those are not grounds for dismissal. You can argue those facts at trial and hope that they create a reasonable doubt in the mind of the judge, in which you would be found not guilty.

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  • What can I be charged with if I took someone else's prescription in a suicide attempt?

    I am on probation for drug possesion and took someone else's narcotic prescription in a suicide attempt

    Joshua’s Answer

    Theft and possession of a controlled substance are two obvious possibilities, but the potential charges are limited only by the imagination of the prosecutor. And of course, whether you are charged with a new offense or not you could find yourself facing a petition to revoke your probation.

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  • Illinois Appellate Procedure?

    After the appellants brief is filed, the appellees brief is due not to long after. My question is what happens when the appellee does not file a brief? Does the appellate court automatically grant the relief sought by the appellant?

    Joshua’s Answer

    • Selected as best answer

    Absolutely not. There is no such thing as winning an appeal by default. The appellant must always persuade the court that the judgment of the trial court is erroneous and prejudicial, and that burden of persuasion remains regardless what the appellee does or does not do.

    So what happens when the due date for appellee's brief comes along? Appellee will either file a brief, request an extension of time, or, if ill advised, will simply do nothing. If appellee files a brief then appellant has an opportunity to reply. Once all briefs are filed the case is ready for decision by the court, with or without an oral argument.

    If the appellee requests an extension of time the request is almost certain to be granted . . . more than once. Illinois courts are generally liberal in allowing extensions of time, but sooner or later the court will order that an extension is final.

    And if the appellee notifies the court that it will not be filing a brief, or simply never files one? Then sooner or later the court will take the case for review on the basis of appellant's brief only. Appellant still has the difficult burden of persuading the court that relief is appropriate. All that has happened is that appellee has given up any opportunity to argue its case. Always a very bad move by appellee, in my opinion, but by no means fatal in most instances.

    So, no, this is not the circuit court. You cannot win an appeal by default and there are no windfalls in appellate practice.

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  • What is admissible in federal court .

    Got indicted on drug conspiracy along with 70 other people . Last November agreed to "cooperate " with dea answered some questions , and some. Gave a statement. I was not under arrest, not read my rights, did not know they were recording me. Wel...

    Joshua’s Answer

    Is your question whether your statement to the DEA would be admissible against you at trial? Very possibly it would. Nothing in your posting suggests otherwise. You are certainly going nowhere with that "they didn't read me my rights" business. But of course you are not facing 0-20 just because of your statement. They had plenty on you before that or you would not have been indicted to begin with. And as one of my colleagues has already pointed out, you can be pretty confident that some of your co-defendants are preparing to testify against you. What you yourself were caught with is of no consequence. You will be sentenced on the basis of the amount of drugs that was foreseeable to you given your place in the conspiracy, and it will be a lot more than 5 grams.

    But here it is September and you have been without an attorney for at least ten months after you were indicted, possibly a lot longer than that. No wonder these things are happening to you. I assume that when you were arraigned on the indictment the judge explained to you that you had a right to an attorney and that counsel would be provided for you without charge if necessary. Why did not you accept counsel immediately? This mess is of your own making in more ways than one. Either hire an attorney or get in touch with the federal defender office in your district, and do it before things get worse than you have made them already.

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  • Can I plead insanity and/or self defense?

    I was charged with 3 counts Aggravated Battery with the use of a deadly weapon in Illinois. I had just had a baby, had not been working, stressed beyond compare. I have been evaluated before the incident for depression & suicidal ideation. I was t...

    Joshua’s Answer

    These defenses are always very difficult, but the occasionally succeed. With all respect, I must urge you not to try to plan your own defense and not to try to direct your case. Put this matter in the hands of a capable and respected criminal defense attorney and discuss your charges and defense with counsel, and with nobody else. A posting to an internet Q&A forum is not a discussion with an attorney. You need a thorough, hardworking defense, not a chatroom.

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  • Motion to dismiss due to ineffective assistance of counsel

    I am a defendant in a criminal case. My defense strategy depends on a key witness' testimony. The case ( an infraction) has been continuing for more than 8 months. During the course, there were 3 changes of public defenders. Finally I got ...

    Joshua’s Answer

    Ineffective assistance is never grounds for dismissal. The normal remedy is a new trial. Moreover, it is really not possible to establish ineffective assistance prospectively. I would think that your remedy at this point is to seek a continuance of trial on the grounds that the witness cannot be found. You would probably need to demonstrate diligent effort to find the witness and reason to believe that he will be found if the continuance is granted. The judge would presumably make some inquiry, perhaps even hold a hearing, on your motion. You could, at such a hearing, complain to the judge that your attorney had not attempted to find the witness. That, however, opens the door to the attorney's explanation, which might be very damaging to you. Better discuss this with your attorney or hire another who will be ready to go to trial as scheduled if the continuance is not denied.

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  • Does the defendant need a lawyer to get out of this situation?

    My brother is currently in jail and has a parole hold he was sent to jail on a domestic and the story is completely false the victim exaggerated to the police to have them make the defendent leave but instead they arrested him he didnt do anything...

    Joshua’s Answer

    Maybe he can get out of it, maybe not. It depends on many factors, mostly how the testimony comes in at hearing or at trial. Does your brother need a lawyer? Yes, for sure. He is in danger of both being convicted on the domestic battery and of being violated on his parole. Prison time is a serious danger in this case. I would put this matter in the hands of an experienced and respected criminal defense attorney who practices in your county.

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