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Right to appeal or habias corpus felonious assault with serious bodily injury


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#1 thelevee

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Posted 04 December 2012 - 10:22 AM

Defendant plead not guilty. Counsel presented defense, no witness, no case, no investigation, referenced evidence in closing argument but provided no testimony during trial. Substantial prior statement conflicts in sworn testimony in civil court, in affidavit, in business records entered into evidence(hospital emergency room statements to medical service providers show evolution of victims claim and difference in injury - claim of kick resulting in broken leg and torn ACL in knee, no broken leg from kick exists , defendant claims victim ran into him and fell). One month later victim amends claim and adds a broken rib as another injury resulting from allegation of assault. Defendant was recovering from rotator cuff surgery and general anesthesia within 24 hours of the allegation of assault , victim administered pain medication not prescribed to defendant knowing a history of sensitivity and negative reaction to the drug given. Possible involuntary intoxication implication.
District Attorney amended Grand Jury indictment to fit evolution of story. Single alleged witness was daughter who subsequently threatened victim witha firearm, arrested and charged with felony assault deadly weapon, family violence. No statement to police made by witness prior to trial.
Probable ineffective assistance of counsel. After finding of guilt, in front of witnesses, defense council coerced defendant to make a post finding of guilt plea for probation and as a condition waive right to appeal. Unknown to defendant at the time, council waived per-sentencing investigation. Defendant had no prior history. Defendant was subsequently examined by forensic doctor and had a questionable ability to understand the process( continuos profession of innocence, PTSD due to vexation litigation, over a dozen false complaints, victim violated civil court TRO contacting defendants employer, false claims of sexual assault of adult step daughter, investigated and detective found no evidence and reason to question motivation of complaint as noted in police report and pattern of false allegations of violation of protective order , one true violation- defendant under influence of prescription drug administered by jailer, returned to home after initial arrest, got in car and was leaving when arrested for PO violation-defendant was wearing GPS device after arrest, alibi - in court before magistrate at same time. Charged dropped as a result of plea)
Plea bargain offered was contingent upon Compact Acceptance, which was initially refused and granted one year later - part of plea agreement was for defendant to return to family home in another state.
Next business day after agreement defendant retained appeals attorney.
Appellant attorney contacted court and was show waiver of right to appeal. New appellant attorney retained and discovered an error in the courts records. One area certified defendant as having the right to appeal and another, from the D.A. Show appeal right waived.
No habias corpus can be filed pending appeal and no appeal because of waiver. Appeals attorney has requested court to correct record one way or the other. Conviction over one year ago. Request for appeal occurred within days of conviction. Denied. At what point is the due process of law guarantee violated?
Evidence in the hands of the civil divorce court show constructive perjury on the part of the victim. The civil case was heard post criminal. The divorce award is in appealant court. The defendant has been deprived of most all person property and all communal property.
Current appeals attorney has been delayed action on the part of the court for over one year. Compact appeal took one year to allow defendant what was bargained for in plea agreement. Trial lawyer told defendant he was not eligible for appeal, he did not do appeals and he could not win an appeal.
Defendant was told many different versions of agreement to the point the court had to recess several times to work out ambiguities told to defendant by his counsel.
Defendant is now indigent, homeless, unemployed, unemployable and paid out all of retirement savings to defense.
At what point is the due process of law guarantees violated?

#2 LegalwriterOne

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Posted 04 December 2012 - 04:48 PM

Your post is really hard to follow. First you say that there was a "finding of guilty," then you say there was a plea bargain. What you don't say is whether or not the "finding of guilty" was after a jury trial or not. You really can't enter into a plea bargain after you're convicted at trial. If you could just give the basic procedural facts and include what state this occurred in, that would be most helpful...

#3 thelevee

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Posted 04 December 2012 - 05:12 PM

You only think you can't plea - it happened. Trial attorney convinced defendant to forego a jury trial. Trail was at the bench. A plea agreement was made on the volition of the defense attorney. After the verdict was read, the trial defense lawyer approached the asst. DA and they struck a deal. The defense attorney, in my opinion, was trying to keep from being held responsible for his lack of representation.
In Texas anything can and has happened.
This is only half the story. The divorce trial was such a comedy of errors it is almost impossible to relate. It was built that way. The plaintiff, her first attorney and the attorneys assistant went into full combat mode and the court refused to enforce its own orders. The assoc. judge in hearing was presented with violations by plaintiff of her own orders and did not bat an eye. The assoc judge issued a ruling in spite of airtight alibi that the defendant did not violate PO - in the company of an officer of the court (his attorney) appearing in a magistrate court 15 miles away at exactly the same time and a time stamped notice of representation by the clerk for the attorney representing defendant resulting in a finding and an order for GPS monitor at the cost of $10,000.00.
The district judge refused a contempt motion which was clear and perfect. This caused the THIRD divorce attorney to forego pressing over a dozen contempt motions - no one wanted to offend the court.


#4 LegalwriterOne

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Posted 04 December 2012 - 07:41 PM

It was a sentencing agreement then, not a plea deal. The defendant was adjudged guilty by the court before any discussion occurred regarding sentencing. That's perfectly legit. If the defendant waived his appeal rights, that waiver doesn't apply to raising IAC in a habeas petition. Habeas is an extraordinary writ, not an appeal.

#5 thelevee

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Posted 04 December 2012 - 08:00 PM

Ineffective assistance, mental capacity to make decision and the court clerk issued cert. of right to appeal are in play. If just a sentencing agreement then ability to raise issues of understanding the waiver of appeal would allow forensic psychologists evaluation to be heard. Court has two different outcomes. One shows guilty with appeal available and the other shows agreement with waiver of right.
If agreement stands then a writ would be in order. Court will not accept writ because record exists showing appeal available.
The sentencing agreement was not kept originally and defendant was held in Texas until indegent. That was one year. The fact of the matter is if the attorney had done any work other than show up the involuntary intoxication and possible temporary incapacity would be presented at trial and sentencing hearing. The defendant recanted plea immediately. Defense attorney badgered defendant in the presence of two witnesses and did not participate in discussion. This happened in the space of a few minutes. Agreement was not conveyed to defendant properly. And just to make matters more complicated the act was made up by victim to extract maximum benefit from divorce in civil court.
The defendant in all actuality did not assault the victim, the victim assaulted the defendant and fell.

#6 thelevee

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Posted 04 December 2012 - 08:21 PM

The issue is that the court has not corrected the records to allow the habias corpus and enough evidence exists to show major doubt in the testimony at trial. It is also irrefutable fact that defendant was incapacitated because of previous days surgery and medication. The.victim testified defendant rammed operated shoulder into her spinning her 180 degrees and in order to inflict the injury from a month previous, had to lift the victim about two feet into the air. It is highly unlikely a person with a full rotator cuff replacement 24 hours earlier could perform such an action and three incisions and sutures stay intact. Defendant was subjected to an ongoing assault of intentional infliction of emotional distress brought on by constant actions of false police reports, violation of civil courts orders in TRO and addition acts of both slander and liable. It is one of the dirtiest divorces I can find. The victim went as far as using a wheelchair in court. Victim called police and stated 80% disabled and when orthopedic surgeon did not want to perform invasive procedure because of medical condition - arthritis , victim stated she was in wheelchair on the advice of her attorney concerning a previous law suit for a car accident and stated in med record " I am really quite active". Victim has pattern of false allegations in previous marriages and in family issues.
The defendant's outcome is to attempt to show ineffective assistance and if but not for ineffective assistance the trial would have different verdict.
The crime the defendant committed was in the selection of wife and the selection of counsel.


#7 LegalwriterOne

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Posted 04 December 2012 - 11:52 PM

The notice of appeal had to have been filed within 30 days of sentencing or within 90 days of sentencing if a notice for new trial was filed first. Miss those deadlines and the appeal is time-barred. Since your conviction is well beyond that, an appeal isn't possible. Further, appellate courts do not reweigh evidence. They simply review the trial transcript. New evidence cannot be introduced in appeal. New evidence can be presented in a habeas petition BUT it had to actually be new evidence--things that were completely unknown and undiscoverable prior to trial.

#8 thelevee

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Posted 06 December 2012 - 05:38 AM

What bearing does the performance of counsel have ? Ineffective assistance is apparent.


#9 LegalwriterOne

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Posted 06 December 2012 - 08:00 AM

Ineffective assistance of counsel can be raised in a habeas petition.

#10 FindLaw_Amir

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Posted 21 December 2012 - 11:08 AM

You may want to visit the Criminal Law Center: Criminal Procedure and read The Appeal, Writ and Habeas Corpus Petition Process as a good resource to learn more about this subject matter.
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