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Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence
Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

Habeas Corpus and Post-Conviction Cases

Paul Kish has been representing individuals and companies accused or investigated for crimes for more than three decades. Over the years he has worked on many matters involving what is sometimes called a "habeas corpus" petition or a "post-conviction" case. These proceedings are often the last available step when someone wants to challenge their conviction or sentence, and it is important to consult with an attorney who knows the rules surrounding these complicated legal matters.

Habeas corpus is an ancient Latin legal phrase that has come down from our legal ancestors in England. It originally was a court order requiring that a person in custody had to be brought before a judge or into court, unless the jailer could show lawful grounds why the person should remain detained. It was basically a way to challenge whether the King could keep a person in custody. Over the centuries, the process has changed a lot, but it still is basically the final method for challenging whether the government has the right to keep a person in prison after being convicted for a crime. One change over the years is that many jurisdictions have more or less replaced the ancient writ of habeas corpus with a more standardized and modern process called a "post-conviction" proceeding, which still can lead to the same result of getting a person out of prison.

Before talking about the rules for these cases, it is important to know about the different court systems where these matters take place. There are two main places where habeas corpus and post-conviction cases take place: the state courts and the federal courts.

In Georgia, a person who wants to challenge his or her conviction can file a habeas corpus petition. However, there are time limits for filing a Georgia habeas corpus proceeding. The incarcerated person must file within four years of when his or her conviction became final, or when some new rule or fact came to light that now makes the conviction seem to be improper. Note that a conviction can become "final" in a number of different ways, so it is important to think about a potential for a habeas corpus challenge far in advance of the expiration of this four-year limitations period. Not only are there time limits, geographic issues also must be considered in a Georgia habeas corpus case. For the most part, a person who is in a Georgia prison must bring his or her habeas corpus case in the county where he or she is incarcerated. This means that if a Defendant was convicted in Fulton County in Atlanta but is in a prison in Dade County in north Georgia, the habeas case goes to a Judge in Dade County, not back in Fulton County. This can have a big impact when deciding on the costs associated with handling a case.

Federal post-conviction cases can hear challenges to convictions that were originally imposed in either state courts (like Georgia) or from a federal court. Here is how that happens when the conviction came from a Georgia State Court. Let's say that a person is convicted of a crime in a State Court in Georgia, the conviction is affirmed on appeal, and that person then files a Georgia habeas corpus proceeding, arguing that the Georgia courts misapplied federal constitutional legal rules when affirming the Defendant's conviction. If the Georgia habeas corpus court still denies relief, this person has a limited opportunity to file a federal post-conviction proceeding under 28 U.S.C. §2254. The person only has one year from the denial of his Georgia habeas case in which to file this federal proceeding. Furthermore, the review by the federal courts is quite limited to looking at whether the State Court engaged in an unreasonable application of binding federal law.

As just mentioned, a federal post-conviction case can also be brought to challenge a federal criminal conviction, this time under 28 U.S.C. §2255. The following explains how this process takes place. Assume a person is charged with a crime in the federal court system, and he or she is convicted, and then appeals the case. If this Defendant loses his or her appeal of a federal conviction, he or she has one year to file a §2255 matter. The §2255 is more or less a replacement for a habeas corpus proceeding. However, the Defendant cannot simply re-argue the claims made previously when they were appealing the case. Instead, it has to be a new argument, and he or she needs to show why the Defendant could not have previously brought up this new claim.

This short explanation demonstrates how complicated habeas corpus and post-conviction cases can be. However, these are often the final chance to challenge a criminal conviction. Anyone who has such a case should consult with an attorney experienced in such matters to see if these proceedings might possibly lead to overturning a criminal conviction. Call Paul at (404) 207-1338 if you have an appellate or post-conviction case you'd like to discuss.

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