Henak Law Office, S.C. - Premier Wisconsin Criminal Appeal Lawyers

Federal Habeas Corpus - 28 USC §2254

Federal habeas corpus under 28USC §2254 is a procedure allowing a person convicted in state court and currently in custody to challenge that custody on the grounds that the sentence or underlying conviction violated the federal Constitution. The federal courts provide forms for filing a petition for writ of habeas corpus, and most petitions are filed by state prisoners without the assistance of a lawyer. However, habeas corpus is subject to a multitude of restrictive procedural rules and requirements that can easily lead to denial of relief even in cases where the conviction or sentence are indisputably unconstitutional.

To name just a few restrictions, the claims raised on federal habeas corpus must be based in the federal Constitution, must have been properly raised to the state courts all the way through the state supreme court, and must not have been waived, forfeited, or procedurally defaulted in the state court proceedings. In addition, the petitioner must be in "custody" as a result of a state conviction at the time the habeas petition is filed, and the petition must be filed in the proper federal court.

Furthermore, perhaps the most important requirement that those contemplating a federal habeas petition must keep in mind is that, with very few exceptions, the petition must be filed in the federal district court within one year after the direct appeal from the state conviction becomes "final." That means that, if you filed a direct appeal and appealed your issues through a decision by the state supreme court, your one-year period for filing a federal habeas petition begins to run 90 days after the state supreme court's decision. Although the one-year period stops running temporarily if you file a motion for collateral relief or Knight petition in state court before the deadline expires, such requests generally do not start a new one-year period. Also, the deadline for filing a federal habeas petition is "tolled" (i.e., temporarily stops running) only so long as the collateral motion or Knight petition remains pending in the state court. Therefore, once your motion and any state court appeal of that motion are resolved, the deadline begins running again from the point at which you filed your state motion.

It is therefore critical that an inmate seeking to file a federal habeas petition obtain the assistance of counsel experienced in pursuing such petitions, such as Henak Law Office, S.C., as quickly as possible following the completion of the direct appeal. While counsel cannot guarantee relief, they can help minimize the types of procedural missteps that torpedo the vast majority of habeas petitions.