A valuable checklist for writs of habeas corpus

Editor’s note: TDCAA will publish Andréa’s book, Writs, in early 2016. Look for more information on our website, www.tdcaa.com, in January.

Whether you respond to applications for writ of habeas corpus every day or once every six months, a checklist can be invaluable in planning and organizing your response. Here is a checklist specifically for Article 11.07 applications for writ of habeas corpus (final felony convictions; returnable to the Texas Court of Criminal Appeals).

First, here’s a list of calendar deadlines1

15 days from receipt of application: State’s response due
35 days from State’s receipt of ­application: Trial court’s jurisdiction expires unless Order Designating Issues (ODI) signed.
180 days from State’s receipt of ­application: Trial court must resolve the issues regardless of ODI unless a motion for extension of time is filed with the Court of Criminal Appeals (CCA) before the 180-day period.

181 days from State’s receipt of ­application: District clerk shall forward the writ record down to the CCA, regardless of resolution by the trial court, unless the district clerk has received an extension from the CCA.

Next, find out if the writ is dismissible on procedural grounds. Ask yourself:

•    Is the application premature (that is, filed before final conviction)?
•    Is the application non-compliant (not in or on the proper form)?
•    Was the application properly verified?
•    Is this a subsequent application (does it not overcome §4 subsequent writ bar)?
•    Has the applicant’s community supervision not been revoked?
•    Is the applicant no longer confined? Has the applicant discharged his sentence and is not suffering any collateral consequences (such as sex offender registration, used to enhance another conviction, affecting ability to get a job, etc.)?
•    If this is a time credit claim, has the applicant presented the claim to the time credit resolution system of the Texas Department of Criminal Justice’s Institutional Division? (Has he complained to TDCJ first?)
•    Is the only claim one of pre-sentence time credit? (It must be raised in a motion for nunc pro tunc.)
•    Has the applicant died?
•    Are the applicant’s claims moot?
    A “yes” answer to any of these questions means the writ is dismissible on procedural grounds.

Third, begin the investigation.

•    Are the claims cognizable?
•    Order records (appellate and trial files).
•    Do you need evidence to properly respond to claims? (Is it a purely legal claim?)
•    Are the claims barred by laches because the evidence is no longer available? (Is the attorney dead? Are the files destroyed?)
•    Do you have the evidence (e.g., appellate record; witness statements, etc.)?
•    Do you need affidavits (e.g., ineffective assistance of counsel [IAC], parole board, and time credit claims)?
•    Is an ODI needed (for time to collect evidence, affidavits, etc.)?
•    Is a hearing needed (e.g., actual innocence, IAC, etc.)?

Now, it’s time for the State to respond.

•    Respond on the merits.
•    Request an order for affidavits.
•    Request a hearing.
•    Request forensic testing.
•    Request designation for general investigation.
•    Request scheduling order for deadlines.
    Note: If the State does not respond, matters “not admitted by the State are deemed denied.” 

Findings of Fact

These should be separate from Conclusions of Law (see below).
•    Address every claim. If there are multiple grounds, consider organizing findings by ground for clarity.
•    Every finding should have a citation to the record or a clear explanation as to its origin (e.g., the trial court’s personal recollection).
•    Each finding should contain only one fact.
•    List them in logical order; it should read like a road map for the trial court.

Conclusions of Law

These should be separate from Findings of Fact (see above).
•    Address every claim. If there are multiple grounds, consider organizing conclusions by ground for clarity.
•    Provide legal basis before each legal conclusion.
•    Every conclusion of law should contain only one conclusion.
•    List them in logical order; it should read like a road map for the trial court.

Order

Always prepare:
    1) a proposed order for the trial court to sign adopting your proposed findings and conclusions or
    2) a proposed order that includes the desired findings and conclusion unless local rules dictate otherwise.
•    The trial court hears the evidence and resolves credibility issues.
•    The trial court does not rule on the application but recommends disposition.

Objections2

•    If the trial court adopts the applicant’s proposed findings, the State should file objections to the proposed findings in the trial court as soon as reasonably possible.
•    If trial court grants relief, file objections to the adopted findings in the trial court within 10 days from the date of receipt.

Bond3

•    Generally, the applicant may be released on bond upon the trial court adopting or making findings of fact and conclusions law only if the State agrees to release.
•    In DNA cases, after making a favorable finding under Article 64.04 of the Texas Code of Criminal Procedure, the trial court may release an applicant on bail pending writ of habeas corpus proceedings without input from the State.
•    The trial court determines conditions of release.
•    The applicant may continue on bond until denied relief, remanded to custody, or ordered released.

Remands4

•    The Court of Criminal Appeals may remand the proceeding back to the trial court for additional evidence because the Court of Criminal Appeals does not hear evidence.
•    The remand order will dictate whether a live hearing is required or if affidavits are sufficient.

Motion for Rehearing/Reconsideration5

•    If the Court of Criminal Appeals dismisses the application, a motion for rehearing may be filed within 15 days of the judgment or order.
•    If the Court of Criminal Appeals grants relief, a motion for rehearing may be filed within 15 days of the judgment or order.
•    If the Court of Criminal Appeals denies relief, no motion for rehearing may be filed.
•    If the Court of Criminal Appeals denies relief, a party may file a request for the Court of Criminal Appeals to reconsider the application on its own initiative.

Endnotes

1 Tex. Code Crim. Proc. art. 11.07 §3; Tex. R. App. P. 73.4(b)(5), 73.5.
2 Tex. R. App. P. 73.4(b)(2).
3 Tex. Code Crim. Proc. arts. 11.65, 17.48.
4 Tex. R. App. P. 73.6.
5 Tex. R. App. P. 79.