I Need To Know If Anyone Knows Anything About Filing a Habeas?And If You Will read what I Have& Answer TheQ's

Question

I need a answer to this question by someone who knows the law.My son file a habeas and as one of the claims for dismissal he had A.) ineffective counsel and B.)The 2 witnesses were not credible due to their inconsistent testimony at the trial.C.)The dectectives failed to gather evidence that proved the defendent was at the scene of the crime.(witnesses stated that he touched the table cloth and laundry basket) The defendents lawyer failed in arguing in the trial the inconsistance testimonies that the witness had given and no positive ID,light skin with braids,but they said that they were 100%,one said he had a mask on from the head to nose,and at another trail said he had a mask from his nose to his mouth.The other witness said that he didn't have on a mask also that the previous suspect told him what happened.It all makes no sense that someone would be In jail behind all these foul ups.The lawyer also fail to argue the dectives did not gather evidence to prove that the witnesses testimony was in fact true.The Attorney General is trying to get his habeas dismiss because she stated that A and B could have been raised at his trial or direct appeal and are not cognizable in habeas corpus because allowing them to be considered in habeas would
circumvent the trial and appellate process for non jurisdictional defects. Slayton v. Parrigan,215 va.27,30,205 S.E.2d 680,682(1974)Thus,claims A and B are procedurally defaulted and are dimissed.She also goes on to state that In claim C the petitioner raised this claim at trial and on direct appeal, and thus is barred from raising it in habeas corpus by rule of Henry v. Warden,265 va.246, 249,576 S.E.2d 495,496(2003)holding claims raised at trial or appeal are not cognizable in habeas corpus.Thus claim C is dismissed.Isn't this contradicting the previous statement she made about claims A and B? Could someone please answer this question for me as it is very important to by son's case.He does not have a lawyer and we have been doing this with him on our own(can't afford a lawyer)Please take the time you need to answer this question and if you can find a case in point please feel free to include it.
Thank You
Gloria

Answer 1

You mean, filing a Petition seeking a Writ of Habeas Corpus...

The prosecutors arguments seem correct.

A habeas petition is what's called a "collateral" attack -- he's not attacking the conviction itself, rather he's attacking the legal process and saying that the process that led to his conviction was tainted.

"A" would have to be raised on appeal -- unless his argument is that he was appointed counsel by the state in such a way that the state failed to provide him with effective counsel. That would be valid grounds for a collateral habeas attack -- if he can prove that.

"B" can only be raised on appeal -- and even then, the appellate court almost never overturns a factual finding by a jury. Only the trier of fact (the jury, except for a bench trial) can determine whether a witness is credible (believable) or not. The appellate court cannot review that as a matter of law, nor can it be attacked collaterally.

The exception is if the judge gave improper jury instructions on how credibility was to be determined, or if certain procedural irregularities happened during the trial. But that's too complex to address here.

"C" is not relevant either on appeal or by habeas petition. There is no requirement that evidence of the crime be proved only by direct physical evidence. The only attack would be if the detectives withheld evidence that would prove he was not there -- but that can really only be raised on the appeal.

Sorry, but the arguments the AG raises look correct.

If he's in California, contact me privately.