My son filed a Federal Habeas under the impression from his appeals lawyer that all of his State issues were exhausted. (the lawyer told me personally over the phone that all of his State issues were exhausted and he could go the the Federal Court...
I do not practice in California and am not familiar with California state law governing collateral remedies. In most states, however, Mr. Kassman's answer would be correct. The very purpose of collateral review (post-conviction petition, PCRA, habeas corpus, coram nobis, etc., depending on state law and practice) is to bring before the court issues that could not have been raised on direct appeal, usually because they involve inquiry into facts outside the record.
I am guessing that you misunderstood what appellate counsel told you. It sounds as though the attorney meant to say that all of the issues that had been raised on appeal had been litigated through the state court system and were exhausted. But your son's federal habeas petition added additional claims apparently raising non-record issues which he had never submitted to the state courts. That may be why the federal court concluded that he had unexhausted claims.
Although you could, as my NY colleague suggests, cross-post your question under criminal defense, my guess is that the attorneys who can respond to you situation are at least as likely to see it here.See question
I was charged with theft staying up m the clock at work. I received 30 mo probation a fine and a class 2 felony I never been in any trouble nor have a previous arrest or criminal record I just went in not know anything and I was afraid .. can my c...
Illinois has several procedures available for raising challenges to a criminal conviction and it is possible, although by no means certain, that one or more of them might be available to address the situation in your case. By whatever procedural route, however, a challenge to a criminal conviction is always an uphill fight and sometimes the consequences of success can be worse than the consequences of failure. You need to tread very carefully and you definitely need to consult an attorney familiar with this aspect of criminal defense work. On online Q&A forum is no substitute for a lawyer.See question
My daughter moved out of my home off and on and still recives her mail here. I give to her, recently she got mad at me and I had opened a peace of her mail. Now she threaten to take me to court. Can she do this? Will I get in trouble?
Unless you are stealing her checks out of the mail, no prosecutor is going to waste any time on such a matter. So although what you did may be technically illegal, you are most unlikely to be prosecuted or even investigated. But all people intensely dislike having their mail opened, and children in particular resent it deeply when parents open their mail.See question
I was convicted of a felon in 2006. It has since been expunged. Do I need to expose it?
A lawyer well up in the specifics of licensing for nurses in Illinois might be able to give you an immediate and reliable answer to that question, but most of us would want to do a bit of digging to be sure we had all of the facts and that we were up on the law. Are you a member of a nurses union or organization? If so, that might be the most direct route to an attorney who really knows this subject.
I have taken the liberty of retagging your question "licensing" because I think you are more likely to catch the attention of the right lawyers that way.See question
Hi. Was arrested in 04/16 for Felony possession of marijuana in Illinois, Marion County to be specific. Class 3 Felony I believe. Bonded out after 3 days in jail. Hired a private attorney. Stayed clean during the 5 months of bond during court proc...
Usually early termination of probation lies completely within the discretion of the judge who imposed the probation. "Within the discretion of the judge" essentially means that the law neither requires nor forbids early termination and the judge can decide "yes" or "no" on an individual case basis. There is no limit to the factors that could be considered relevant to such a determination. I recommend that you consult an attorney who practices frequently in the county where you are serving your probation and who knows the practice and preferences of your particular judge.See question
My brother lost his parental rights to his 21/2 year old daughter because the dhs worker told him The wrong date. How can we appeal this?
Most likely an appeal is not the right way to address this problem Depending on how long ago the court entered iyd order and also on exactly what took place, there may be a simpler procedure available for vacating any judgment entered by default. Do not play around with this because your rights as a parent are at stake.. Consult an attorney who handles custody and DHS cases in Iowa, and do so immediately. You may have a very short time in which to act..See question
My mom has been in federal prison for eight years and filed an appeal and it just got granted and they sent papers telling us it was reversed and amended on a non existing case, we just want to know what happens now and possibly what's it mean?
It sounds to me as though somebody has misread the order. The order as you have quoted it for us makes no sense at all.See question
I am attempting to obtain dual citizenship in Italy. With all the various papers they are wanting from the Italian consulate, one of them is a "certificate of non appeal". It is my understanding that we, the United States, do not have such a cert...
This question comes up quite often. Many countries, especially those that follow French, Spanish or Italian legal traditions, ask for a certificate of non-appeal as a precondition to taking certain actions. What they appear to be looking for is a certification by the American court in which a judgment was entered that the judgment is truly final and has not been appealed. To make life complicated, most American jurisdictions do not issue such a certificate or at least do not have one among the forms that the clerk will normally execute.
My colleagues who practice in international matters have suggested to me that the European attorney or court requesting the certificate be provided with (a) a certified copy of the final judgment (b) a certified copy of the docket, including the entry of judgment and any post-judgment entries (c) an affidavit by an American attorney not connected with the case, perhaps by an American law professor, explaining that the absence of a notice of appeal on the docket within the time required by state law shows that no appeal was taken and that the time in which to take an appeal has expired.
In your situation, I would ask the Italian consulate whether the material I have suggested will be satisfactory. Alternatively, have the lawyer who represented you in your divorce contact the consulate to see what documentation will satisfy the request.See question
I was accused of manufacturing meth by an ex boyffriend and we both were arrested on July 31,2015. I got out on bond Sept 1,2015. He was given probation on March 2016 and has since violated his probation terms and is back in jail. But im still w...
There are a number of factors that must be considered in evaluating a claim of a speedy trial violation, and your posting addresses none of them. There is a statutory right to a speedy trial under Illinois state law and there is a federal constitutional right to a speedy trial. Nothing in your posting suggests that either has been violated, but this is something for you to discuss with your attorney.See question
He didn't have the gun and the victim can not point him out but the juvenile that he was with put him at the scene of the crime can his charge be drop to a simple robbery
Can he be charged with an armed robbery if the gun is unloaded? Yes.
Can he found guilty and sentenced for armed robbery if the gun was unloaded? Yes.
Can the charge be reduced to simple robbery? There are several considerations here.
1. Will the prosecutor agree to reduce the charge to simple robbery? Perhaps, but probably only on the condition that the defendant pleads guilty to the reduced charge.
2. If the case goes to trial on the armed robbery charge, could the jury return a verdict of guilty of simple robbery instead? Maybe . . . Maybe not. It depends on the evidence at trial.
3. Can the judge order the charge reduced or order the armed robbery charge dismissed? Very unlikely. It is possible, but again not likely, that the judge at trial could direct a verdict of not guilty on the armed robbery count and let the case go to the jury on simple robbery, but that is almost certain not to happen on the facts as you describe them.
Need I point out the obvious? This is a very serious charge. The defendant needs representation by a capable, experienced and hard-working criminal defense attorney. An online Q&A forum is no substitute for a lawyer. Start looking seriously tomorrow morning.See question