Habeas Corpus

Federal Prisoner Cannot Bring 28 USC 2241 Petition In Washington, DC

28 USC 2241

A prisoner claiming to be in custody in violation of the constitution or laws or treaties of the United States may seek a writ of habeas corpus under 28 USC 2241 in the federal district court wherein they are confined. The proper respondent is the custodian of the prisoner. The United States Supreme Court has…

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Bad Advice Amounts To Ineffective Assistance Of Counsel, High Court Rules

ineffective assistance of counsel

Ineffective assistance of counsel is the most common claim presented in a 28 U.S.C. § 2255 motion. A § 2255 motion is used by federal prisoners to seek relief from their conviction or sentence. Under section 2255, a federal prisoner may move to vacate, set aside, or correct their sentence if it was (1) imposed…

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Witness Credibility Findings May Not Be Rejected Without New Hearing

witness credibility

Witness credibility is often key in resolving whether a federal prisoner is entitled to 28 U.S.C. 2255 relief. This is because 2255 claims typically pit the testimony of defendants against their former lawyers. However, since federal district judges are busy, magistrate judges are routinely tasked with making a report and recommendation about whether the defendant’s…

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Certificate Of Appealability Standard Not The Same As Merits Determination, Supreme Court Holds

certificate of appealability

A certificate of appealability is required to appeal the denial of federal habeas relief. According to federal statute, a certificate of appealability may only be granted “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has made clear in prior cases that a…

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Self-Representation Erroneously Denied By State Court

self-representation

Brian Foster unequivocally asked to represent himself at his state trial. The state trial court conducted a Faretta hearing to decide if it would allow Foster to represent himself. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the right of self-representation. The state district judge refused Foster’s request to represent himself,…

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Ineffective Assistance Of Post Conviction Counsel May Permit New Challenge To Conviction Or Sentence

ineffective assistance

In many states and at the federal level, claims of trial, sentencing, and appellate ineffectiveness must be raised through post-conviction proceedings. But what happens if your post-conviction lawyer fails to raise a claim of ineffective assistance that could have won? Or, what if you did not have a lawyer when you filed your post-conviction motion,…

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