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Repost (12/6/11 on Habeas Corpus actions)

by merlin on March 8th, 2015
  • Sumo

This is directly relevant to a matter I am researching at the moment.


The legal grounds for attacking a criminal conviction following an unappealed plea of guilt are limited, and the absolute last resort that a person has available to them is to attack the plea by way of a Petition for the Issuance of a Writ of Habeas Corpus.  This is not the method of choice for attacking a conviction, and is only available when other resorts (the obvious one being appeal of the conviction) cannot be used – such as the expiration of the time to appeal.

The writ is a fundamental right, and the rules that govern its use have been approximately consistent in Georgia jurisprudence for some time.  “A discharge under a writ of habeas corpus, after a plea of guilty by one accused of crime, cannot be granted except in cases where the judgment is absolutely void, for the reason that the function of the writ in criminal cases is not to test the truth of any fact essential to the establishment of guilt, but only to discharge one convicted of crime where the judgment is wholly void” (emphasis supplied).  Grammer v. Balkcom, 214 Ga. 691, 692 (Ga. Sup. Ct. 1959).  According to that case – which is still the prevailing interpretation of the law over half a century later – the writ can’t be used as a substitute for the withdrawal of a guilty plea (as when a person changes their mind and wants a trial, instead).  It isn’t a substitute for an appeal, as where the terms of the sentence are illegal or otherwise improper, or there is a legal defect that requires the judgment be overturned.  It is only there as a way of correcting unlawful entry.  In the case for which I am researching this issue, the question is the competency of the lawyer to represent the client.

The actual test for this particular issue – whether the attorney defending the person was sufficiently competent to represent them under the law or not – is drawn from the 11th Circuit (federal) case of McCoy v. Newsome, 953 F.2d 1252 (11 Cir. 1992).  In looking at potential grounds for the issuance of the writ, the case talked about witnesses who the Defendant claimed provided him with an alibi, but who he says his counsel did not contact.  His counsel said that he did contact the people named, but that the evidence that they proposed to testify to did not support the alibi the Defendant chose to present.  Similar to the matter in question, the decision to call the person nonetheless involved the basic rule that the factfinder is the ultimate arbiter of the credibility of the witness, and the attorney can make a conscious choice regarding calling this person as a witness.  The standard the case set to evaluate this decision is whether or not it was “clearly erroneous”.

That case sets a standard for evaluation of the representation itself, in terms of any allegations of ineffective assistance of counsel, as a question of the “totality of the circumstances”.  One individual aspect might be subjectively poor, but if the overall effect was to the person’s benefit or credit, the conviction will be upheld.

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