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Can you file a new Habeas Corpus petition after the appeal is final if you already had filed one before the decision?

San Diego, CA |

I filed a petition for writ of habeas corpus while my appeal was pending. It was essentially denied stating that I could not make a collateral attack with the same issues on my appeal. Now that my appeal is final, can I file another habeas corpus? Also, the presiding appellate judge who ruled on my first habeas corpus was the trial judge and has since recused herself. How do I have an impartial judge review my habeas corpus? Do I need to request that in some way?

Attorney Answers 4


A writ of habeas corpus (assuming you are filing it in the in the same appellate court as the appeal) serves a different purpose than an appeal. With an appeal, you can only address the issues that appear in the record on appeal. If you are bringing up something that is not within the appellate record, then a habeas corpus is appropriate. Another function of a habeas petition is where you brought an appeal, but failed to raise an issue you wish the appellate court to address that is contained in the appellate record so that you you can then challenge the conviction/ruling in federal court. This is familiarly called an "exhaustion petition". You would not file a habeas petition with the same court raising the same issues you raised in the appeal. If you are going to federal court, then you would do that by filing a writ of habeas corpus.
You do not generally need to request an impartial judge. That is required by their ethics oath. There is a lot that could be explained here, but without knowing your particulars, that is the best I can do. Many lawyers here on Avvo offer free consultations. It might be in your best interest to consult with someone or even pay someone to do this for you.

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Thanks for your response. The reason why I raised the question about an impartial judge because the trial judge retained jurisdiction on the case after trial -- she then became the presiding appellate judge. After the trial, she had the transcript altered. I didn't know what to do with that information since she was still presiding over the case. I still don't know what to do with that information.


If your habeas wasn't decided on the merits, you can probably file it now that your direct appeal has been denied.

No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia

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Without knowing what ruling(s) were challenged on appeal, it is difficult to say if the habeas petition would be made moot by the ruling on the appeal. If no ruling on the appeal renders your habeas petition moot, yes you certainly can file a new habeas petition.

Based on how you describe the court's ruling on your first habeas as being a collateral attack and that the appeal should have done that, it seems a new habeas on different grounds would be fine.

There is no special request you need to make to have an impartial judge rule on your new habeas.

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What you need is an experienced criminal appellate attorney....and quick.

Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

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