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Issues that Can Be Raised in a State Petition for Writ of Habeas Corpus.

The legal issues that can be raised in a state court petition for writ of habeas corpus.

There are two circumstances in which you will have to file a state court petition for writ of habeas corpus rather than raise your issues in a direct appeal.  

First, you will be able to raise your issues only by a habeas petition if the time for filing your Notice of Appeal and/or the request for a Certificate of Probable Cause has passed and you are denied permission to file late. You will have to explain in your habeas petition why you did not raise the issue in an appeal.

Second, you will have to raise your issue in a state habeas petition if your argument depends on any facts that were not presented to the superior court judge either during a hearing that was reported by the court reporter or in written documents filed with the court.

For example, you may need to file a habeas petition if you did not understand what sentence you could receive, and your trial counsel failed to object at sentencing or failed to make a motion that you be allowed to withdraw your plea.

In such circumstances, the superior court record probably won’t fully show that you did not actually understand the terms of the plea and that you would not have accepted the plea if you had understood them.    

When you file your habeas petition, you should attach any documents you can get to show the full facts important to the issue. For example, you might need to write a declaration or get a declaration or file notes from your defense attorney about your discussions.

You might also need to include a declaration in which you state that you did not actually know about your legal rights or the consequences of your plea, and that you would not have taken the plea if you had correct information.

All declarations should be signed and include a statement that the person making the declarations swears “under penalty of perjury under the laws of the State  that the information is true and correct.” 

There is no set deadline for filing a petition for writ of habeas corpus, but you should not delay any longer than necessary. If you do not file within a reasonable period of time, the court may deny your petition as being untimely.   

Usually, you should file your petition in the superior court in which you entered your plea and were sentenced, but you may be able to file your petition in the court of appeal if you have a direct appeal pending from the same case. 

There is a standard form that you can use to file a petition for writ of habeas corpus. If you cannot afford an attorney to represent you, you should also file a “Declaration of Indigency and Request for Appointment of Counsel.”     

If the court issues an order to show cause after you file your petition, it must appoint an attorney to represent you in the rest of the proceedings, if you have requested an attorney and shown that you are not able to afford to hire one.
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