Figure out If a Writ Is The Best Way to Move Forward
Many clients want to get rid of unfair or unwanted items on their record. Sometimes they are eligible for other relief besides habeas writs, such as: 1) a petition to restore their civil rights, 2) a motion for non-disclosure, or 3) in a juvenile context, a motion to seal under the Family Code. At times they may still have options left on the direct appeal, such as filing a Petition for Discretionary Review with the Court of Criminal Appeals in Austin. (Generally appeals must be exhausted prior to filing writs). A lengthy interview and a review of the paperwork from the client will help you find the right means of assisting them.
Figure out What Type of Writ Is Best
Article 11 of the Texas Code of Criminal Procedure outlines various types of writs to use when one is seeking post-conviction relief, or post-indictment. For example, to challenge either the conditions or the facts of community supervision on deferred, one can use a writ drawn under Article 11.072, or in certain cases under 11.08. For final final felony convictions that have exhausted their appeals, or never got one because they were plea bargains and hence waived their appeal, the best format is usually a writ under Article 11.07, which requires a specific form, available from the Clerk's office or online from the Court of Criminal Appeals.
Pull Every Record You Can
You will need the Judgment and Sentence, the plea papers [if applicable] or the trial record from the appeal. You will need the briefs filed, the clerk's records, [all of them, not just the stuff that gets sent to the appellate courts] the original lawyer's files, any notes or letters from your client, in short, anything that helps you understand the broad outlines of what happened to your client. Send Open Record Requests for every state file. Then the hard part starts.
Investigate and Interview for Everything You Can Find
You know what the official record says. Now you need to get to what they did not find. Example: was there evidence that your client suffered from mental illness at the time of his encounter with the law? Then you need medical records, diagnosis from the treating doctors, and family interviews/affidavits to substantiate the claims for either incompetence, insanity, or ineffective assistance for the trial lawyer's failure to develop this information for trial.
You need to interview the attorneys at trial. This is not only for IAC claims, [which often are simply not there] but to determine if there was state or jury misconduct, or bad actions or bias by the trial judge. Assume nothing was correct in the original case, but remember it is YOUR burden to prove a constitutional violation, no one else's.
Outline Your Claims and The Proof
This means literally sitting down and drawing out the potential claims, followed by every piece of evidence you have that substantiates this. Example: your first claim may be that the police hid exculpatory information relating to another suspect that was tentatively identified at the scene, an item you discovered via an Open Records Request. The copies of those police notes or reports get attached to the writ application, and in your outline are listed behind the claim. It should also point you to witnesses you need to subpoena or interview, and their statements/affidavits should be appended as well.
Draft The Writ and Get Your Client to Sign The Verification for The Application
Sometimes one forgets that there needs to be an affirmation by a person with knowledge re the allegations raised in the writ. A good practice is to have your client review the draft and sign an affidavit attesting to the truth of the allegations raised in the writ. An 11.07 writ [and all post-conviction writs really] should also append the copy of the judgment and sentence or allege how/ why your client is still under restraint or in the custody of the State. The draft should not be wordy, and any brief in support of the writ should stay simple and focus on the essence of the claim. However, a short factual summary is often useful.
File The Writ and Ask for Fact-Finding or a Hearing
Writs are filed in habeas in the convicting court, or if there is no available court, with the administrative court, or in some cases the county judge. There is no deadline for state writs; they can be brought anytime so long as direct appeal has ended.
Always ask for additional fact-finding, as the court can grant whatever it wishes to, from depositions to interrogatories to a hearing.
Under the federal Anti-Terrorism and Effective Death Penalty Act [AEDPA] there is a presumptive one year time limit between the end of direct appeal and the date to seek federal relief of your claim. A properly filed writ stops the clock in state court; but keep that deadline in mind when conducting your review. You may need to expedite filing in order to preserve federal review of your claim.
Request a Designation of Factual Issues Requiring Resolution
When you ask for additional fact-finding, it should be tied to a request for designation of factually disputed issues, such as whether the attorney at trial rendered ineffective assistance of counsel.
This is a step often over-looked. With your application, file a motion requesting that all your claims [or at least the really good ones] be designated as factual disputes requiring further development so that when the State responds the judge already knows what you are asking for and what the central issues are in the case. Think of it as a shorthand snapshot of the most critical things in your case.
Prepare for Your Hearing
If you get a hearing, subpoena everyone possible. This is your case to win or lose now; you must prove your claims by either a preponderance of the evidence or by clear and convincing evidence if you seek the holy grail of actual innocence. Tell the lawyers to bring their files, the police to bring their notes, the other witnesses that were never called, the experts your fellow should have had, etc. Have someone critique the presentation and the order of witnesses, and be prepared for everything to change the day of the hearing. Remember - Semper Gumby.
Prepare Good Findings for The Court to Sign, Object to The State's, and Ask for Briefing from The CCA
The trial court [or whatever lower court actually reviews the matter] acts as the recommending/fact-finding arm in these proceedings, much like a European inquisitor system. Its findings and conclusions of law receive great deference from the Court of Criminal Appeals, but are not final. Anything unreasonable or not supported by the record must be tracked down and identified and disputed before the CCA. Keep fighting and ask for argument and briefing before the CCA, particularly if you intend to get into federal court afterward.
Writs are not easy, but can be a great way to correct an injustice, and are often the last hope for your client. If you have any questions, do not hesitate to contact one of the many fine writ practitioners here in Texas, or consult the law library for a few of the titles listed in additional resources below.
by Patrick F. McCann 713-223-3805
Additional resources provided by the author
Texas Criminal Writ Practice, by Catherine Burnett, S. Texas College of Law
Post-conviction Remedies, by Larry Yaeckel