Types of Judicial Relief
The first step in post-conviction appellate process is called the “Direct Appeal”. For direct appeal, there are some important facts that must be understood, in order to better understand the writs that follow direct appeals.
On direct appeal:
- A defendant is entitled to appointed counsel;
- Arguments are made about questions of law; and
- Arguments are made about the sentencing court’s decisions;
- Questions of constitutional defect are NOT allowed here as they are reserved for “collateral review”.
When all direct appeals have been exhausted by a defendant (inmate), many times hope feels lost. This is a normal feeling, but not true. After direct appeals are finished with no relief, there are three separate options for relief. All three are Writs, and each has a specific use. These writs are used as follows:
- A Writ of Habeas Corpus (28 U.S.C. §2255) collaterally challenges constitutional issues regarding conviction and sentencing. These can range from Due Process violations, such as ineffective assistance of counsel, all the way to death-penalty arguments about cruel and unusual punishment protections.
- A Writ of Habeas Corpus (28 U.S.C. §2241) challenges the way a sentence is being carried out. A non-violent, first time offender who is serving a 20-month sentence should not be incarcerated in ADX Supermax in Florence Colorado with convicts like terrorists or the Unibomber. This writ is used to challenge the way a sentences is being served, as opposed to §2255 challenges to the sentence/conviction itself.
- Many inmates filed §2241 petitions together during the COVID-19 crisis claiming the BOP was not doing enough to protect vulnerable inmates from this deadly virus. Famously, a judge in the Northern District of Ohio ruled that the conditions at FCI Elkton violated the 8th Amendment’s protections against cruel and unusual punishment.
- A Writ of Coram Nobis (28 U.S.C. §1651) is used after a sentence is served and completed (including probation/supervised release). These writs are rare and are used to overturn old convictions that constitute an unconscionable miscarriage of justice.
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PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the federal justice system, Bureau of Prisons, and United States Probation.
Find out how we can help by calling us for a free consultation at (480) 382-9287.
For more ways to contact us, visit our contact us page for contact form and e-mail addresses. Read on for more information about the use of habeas writs.
Uses of Habeas Corpus Motions
The two Writs of Habeas Corpus are used by a criminal defendant who is currently incarcerated. Depending on the situation, each can be used to grant relief to the inmate.
A §2255 motion (or petition) is used to challenge the underlying sentence and/or conviction in ways that are unavailable on direct appeal. The vast majority of these motions cite “Ineffective Assistance of Counsel” as a basis for challenge. If a lawyer clearly did a terrible job, this form of relief may be what an inmate needs to reverse his conviction. Strong standards apply to this type of appeal, but relief is not at all impossible with the right help.
A §2241 motion (or petition) is used to challenge conditions or legality of confinement. If unconstitutional treatment is given to an inmate, this type of relief is best used. This type of relief is of particular importance for inmates who are held after their sentence has expired, if they are being held illegally, or if execution of a sentence is being improperly managed by the Bureau of Prisons.
Writ of Coram Nobis
This is a special writ that is based in Common Law. Used only after a sentence of imprisonment is finished, this tool is used to overturn a conviction long after the fact if circumstances have changed in the legal landscape. If a form of prosecution used to convict is deemed illegal or unconstitutional, this writ can be used effectively to remove a criminal conviction from an ex-con’s record.