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RE: [tips_and_tricks] The Court Refuses to Free A Man Serving Six Years on a Two-Year Sentence

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  • Frog Farmer
    ... This is where waivers don t pay off. Most people don t know it when they waive their rights, for the same reason as here: they didn t know they had them.
    Message 1 of 2 , Aug 2, 2007
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      > But the State still wanted Haley to serve

      > the extra 14-plus years on the ground that he had waived the argument
      > he now was making - having failed to raise the objection at trial or
      > on direct appeal from his conviction and sentence.

      This is where waivers don't pay off. Most people don't know it when
      they waive their rights, for the same reason as here: they didn't know
      they had them. They don't play the game I play all day everyday: "WAIVE
      NO RIGHTS FOR NO REASON, and collect points". If they never read the
      law books (NO! NOT the WHOLE BOOKS, just the parts that ring bells when
      you read the Table of Contents and the Index!!) that most apply to them
      (for example for me in California that would be the national
      constitution, the state constitution, the state penal code, code of
      civil procedure, vehicle code, evidence code, and rules of court) then
      they never get informed of all the many many rights of which law books
      give notice. Even if they do not specifically apply to me, they are
      supposed to be followed by any neighbors hoping to make a good
      impersonation of a dejure state officer. So we can both go through them
      any time because I have mine and they usually forgot theirs. They are
      usually going by what they heard in "war stories" around the coffee
      machine. I like using the words of the laws themselves, and of court
      citations referring to them.

      They caught me unprepared the other day though, when I was up on a
      ladder fixing a window screen. I had no camera, no recorder, no Public
      Servant Questionnaire (I quit using them for lack of Public Servants),
      just one witness aside from their crew. I had no constitution. I
      offered to conduct the hearing on their cameras or recorders and they

      Also, people seem unaware that the only things that are considered on
      appeals are the objections they made that were overruled during the
      proceedings. If the defendant makes no record of strong constitutional
      objections, there will most likely be nothing to appeal.

      > Using one of those
      > lovely obscurities of the law, the State argued that Haley's claim was
      > "procedurally defaulted" - which is another way of sticking your
      > tongue out and screaming "Hah-hah, too late!"

      That's what it is, but does anyone really think that "The State" argues
      such childish positions?! No, that is one or more bar attorneys who do
      that, not the government set up by the people to administer justice.
      That should be obvious, but then today, is the concept of obvious even
      valid? Haley surely ignored all the steps I would have taken.

      > The federal district
      > court rejected the State's claim. It ruled that Haley's claim fell
      > within what is known as the "actual innocence" exception to the bar
      > against raising defaulted claims. Accordingly, the court ordered Texas
      > to re-sentence Haley. In so doing, the district court broke a bit of
      > new ground. The "actual innocence" exception allows defendants to
      > raise new claims in a petition for a writ of habeas corpus. In the
      > past, it had only been recognized in death penalty cases - not term-
      > of-years cases like Haley's. The district court, however, saw no
      > logical reason for limiting this safety valve where such a limitation
      > would be so obviously unjust.

      ...maybe where it's just a little unjust, like your recent case...

      > After all, the safety valve itself is
      > designed to achieve a just result, and to ensure that legal
      > technicalities do not force an innocent person to serve longer time
      > than he or she should. The U.S. Court of Appeals for the Fifth Circuit
      > -- arguably the most conservative in the country --- agreed. It was
      > willing to extend the "actual innocence" exception to non-capital
      > cases involving habitual offender statutes like Texas'.

      How "white" of them!

      > And that was
      > enough to free Haley, who by then had already served far more than the
      > maximum two years jail time for which he rightfully was eligible.

      I hope he was studying for his next case!

      > The
      > Way Haley Could Be Freed: Broadening the "Actual Innocence"
      > Exception : As the Fifth Circuit recognized, broadening the "actual
      > innocence" exception, even modestly, created some problems of
      > doctrinal purity. To see why, it's necessary to understand how the
      > doctrine evolved. In a long line of cases, the Supreme Court had
      > decreed that ordinarily the only way to raise a procedurally defaulted
      > claim was to show "cause and prejudice." That is, a defendant had to
      > show that there was a good cause for having failed to bring up the
      > defaulted claim at the right time

      Wasn't he Black? Didn't he have an attorney? An incompetent
      illiterate, just using statistics will give you that. And no, I'm not
      racist, but reality does count, not politically correct wishes.

      > and that the failure to raise the
      > claim was going to cause real harm.

      In his case, we don't know if the three hots and a cot was a benefit or

      > But in effect, the "actual
      > innocence" exception does away with the first, "cause" part of this
      > calculus. It recognizes that when the harm is sufficient great - for
      > instance, when the harm is the wrongful imposition of the death
      > penalty

      ...not something minor like job loss or family dissolution...

      > - a defendant need not have an excuse for failing to raise the
      > winning argument at the proper time. (The exception is especially
      > sensible in light of the fact that it's virtually never the
      > defendant's own mistake that the argument isn't timely raised; it's
      > virtually always his attorney's. And ironically, even a grievous
      > mistake that causes the defendant great harm cannot always support a
      > winning "ineffective assistance of counsel" claim.)

      So, pro per defendants need to know about this, that ignoring a right
      and making an unintentional waiver for whatever reason can cause them
      real pain and suffering later, much more than is necessary.

      If you have chosen to employ an attorney as your counsel and want to
      ever use the "ineffective assistance of counsel argument" you need to
      tell your attorney how and when to do everything, in writing, and then
      show that he violated your instructions. See, attorneys are supposed to
      "represent you" not "teach you". If they do the job of a flake, you
      must be the flake because they are representing YOU. You are the
      employer and are expected to tell the employee how to do everything the
      way you desire. There are so many ways to do everything, and some
      people cannot even come up with one of them on their own so they leave
      it up to the attorney to make his personal choice in their case. If
      they later try to get off because of ineffective counsel, it won't work
      because they actually did MORE than the ZERO the incompetent employer
      directed them to do. Sorry I don't have a citation - I came across a
      case about 20 years ago in the law library while I was searching for
      something else, and the concept stuck with me, not the case and


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