RE: [tips_and_tricks] The Court Refuses to Free A Man Serving Six Years on a Two-Year Sentence
> But the State still wanted Haley to serveThis is where waivers don't pay off. Most people don't know it when
> 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.
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 thoseThat's what it is, but does anyone really think that "The State" argues
> 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!"
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...maybe where it's just a little unjust, like your recent case...
> 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.
> After all, the safety valve itself isHow "white" of them!
> 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'.
> And that wasI hope he was studying for his next case!
> 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.
> TheWasn't he Black? Didn't he have an attorney? An incompetent
> 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
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 theIn his case, we don't know if the three hots and a cot was a benefit or
> claim was going to cause real harm.
> But in effect, the "actual...not something minor like job loss or family dissolution...
> 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
> - a defendant need not have an excuse for failing to raise theSo, pro per defendants need to know about this, that ignoring a right
> 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.)
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