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Q) What can I do
First, I'm very sorry this has happened to you and your son. Five years is a LONG time. It's a real shame for the entire criminal justice
system when a person's advocate, his attorney, fails in his duty to represent a client to the best of his ability.
Your son basically has three options, and he should do them in this order: 1) file a motion for a new trial
, 2) appeal, and 3) file a habeas corpus
A motion for a new trial is filed with the trial court
which convicted your son. It says that a legal error occurred during trial which should have been remedied. So, your son's motion would say that his attorney to adequately represent him during the case and that the failure caused your son to be convicted. If the court grants the motion, your son would get a new trial, and obviously with a new attorney!Appeal
If the motion for a new trial is denied, your son would then begin the appeals process. There are numerous grounds on which to appeal a case, and there are just as many ways that a case could end up: it could be dismissed forever, sent back to the trial court for a new trial or for re-sentencing, etc. Appeals are time sensitive. Your son should get competent legal advice about how and when to file the appeal.
Please be aware that an appeal from a felony trial court to a court of appeals is not a "do over." There is no new trial, at least at first, no witnesses, no jury, etc. It is only a review of whether there were any legal errors at trial. Appeals are tough, time consuming, and an uphill battle.
No one has a constitutional right to appeal
their conviction, although most states provide for a person to appeal anyway. Some states, like Virginia where I practice, provide an attorney for a person who appeals his or her case. Other states do not provide an attorney at first, unless the appellate court decides that the appeal has some merit. It all depends on state law.Habeas corpusHabeas
is not an appeal, but rather a collateral attack on a person's conviction. It basically says that the person convicted, i.e. your son, was wrongfully convicted due to some constitutional failure or error. The most common claim on a habeas
petition is ineffective assistance of counsel
under the 6th amendment
. The claim is that the attorney made significant errors before or during trial that essentially caused the defendant to be convicted. A habeas petition is only filed AFTER all appeals are exhausted.What to do?
You or your son should get a competent criminal defense attorney to file a motion for a new trial and then begin the appeals process after that motion is heard, assuming the motion is denied. After the appeals process is finished, a habeas petition should be filed. This will all take a significant amount of time; the wheels of justice turn very slowly.
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Thank you for the opportunity to assist you,