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A writ of habeas corpus is a legal order by a court to restore liberty to individuals unlawfully restrained in any way. “Habeas corpus” literally means, “You shall have the body.” It requires a civil legal action producing someone from jail, prison, or even probation for the purpose of challenging the legality of their restraint.

Both state and federal courts will hear habeas corpus cases. To file a habeas action in a federal court, however, the individual must first exhaust all state-level remedies, include state habeas actions. Attorneys experienced in habeas corpus cases specialize in the protection of your constitutional right to liberty and can help you navigate the complicated terrain of habeas corpus law.

Habeas corpus actions are initiated at the level of a trial court (Superior Court). Therefore, if the trial court grants your petition for a writ of habeas corpus, the opposing party (usually a warden) will have the right to appeal that decision to the Supreme Court of Georgia. If the State appeals, the outcome will depend on the Supreme Court’s decision.

If the Supreme Court affirms the trial court’s grant of a writ of habeas corpus, the trial court will likely order the individual’s release. The case will then proceed much like a case overturned on appeal: the State may decide to retry the case.

One of the most famous habeas corpus cases is Gideon v. Wainwright, decided by the United States Supreme Court in 1963. A Florida court tried Clarence Earl Gideon, an indigent person who did not have an attorney, and found him guilty of breaking and entering a local establishment. Gideon had requested the court appoint him an attorney because he could not afford one, but Florida law did not require it at the time. Gideon’s case served to establish for the first time that state courts must honor the constitutional right to counsel and provide appointed counsel for indigent defendants in criminal cases.

Not every habeas case has the same national scope, but we consider each one as just as important for our client.

Generally, an appeal is a vehicle for challenging a conviction at trial. In the Georgia Court of Appeals, the appeal is heard by three entirely new judges. In the Georgia Supreme Court, nine Justices hear the appeal. In federal cases tried in Georgia, Florida and Alabama, three judges in the Eleventh Circuit Court of Appeals will hear the appeal.

The defendant, having been found guilty, will assert in the appeal that the trial was unfair for a variety of reasons: The prosecutor was permitted to introduce evidence that was inadmissible (such as hearsay); the defense was prohibited from introducing evidence that should have been admitted; the defendant’s Fourth Amendment rights to be free from an illegal search or seizure were violated and the trial judge did not correctly decide this issue in the trial court; the evidence at trial was not sufficient to support the conviction, notwithstanding the decision of the jury; the defendant’s trial counsel was either incompetent, or made a significant mistake at trial, or in preparing for trial and locating favorable witnesses. These are just a sample of the types of errors that can support a successful appeal.

With limited exceptions, a successful appeal does not end the case entirely. Rather, in most cases, the appellate court (the Georgia Court of Appeals, or the Georgia Supreme Court, or the Eleventh Circuit Court of Appeals) will send the case back to the trial court to conduct a new trial but without the error that led to the reversal of the conviction. Nevertheless, often, when a case is sent back to the trial court, the prosecutor will not be interested in trying the case again and may offer a far more lenient plea bargain to be done with the case.

A habeas corpus petition is somewhat like an appeal, but rather than challenging the conviction in the Court of Appeals or the Supreme Court, the defendant challenges some aspect of the conviction in the county in which the defendant is incarcerated. The habeas petition is filed in the Superior Court of that county. Unlike an appeal, in a habeas case, the defendant may present evidence to show why the original trial was unfair, or the defendant’s constitutional rights were violated. Generally, a habeas petition is filed after the defendant has lost the direct appeal.

All constitutional rights affected by the proceedings which resulted in your conviction are fair game for a habeas actions. Likewise, a court may grant a habeas action based on newly discovered evidence that could not have been known at the time of trial. More rarely, habeas relief is available where trial proceedings involved a “miscarriage of justice” or other exceptional circumstances.

A judge could grant a writ of habeas corpus for literally scores of reasons because there are so many possible ways to violate the Constitution. Defense attorneys’ mistakes at trial or on appeal often actually violate a defendant’s Constitutional right to effective assistance of counsel and lead to new trials. Likewise, trial courts may make any of several errors that violate due process or the right to a fair trial. A skilled appellate attorney can review your case and spot any of dozens of types of crucial errors that may provide grounds for habeas relief.

Individuals incarcerated in prison often file a petition for a writ of habeas corpus to challenge unconstitutional aspects of their trials or appeals that were not properly addressed on appeal. There are many, many constitutional violations that could have occurred at the trial court or at the appeals court level. Even a single such violation could prove sufficient for a court to order the individual’s freedom from prison, or to terminate their probation.

The right to appeal refers to the right to have a higher court review your case for errors. Georgia law provides for appeals from various judgments and rulings by lower courts to be reviewed by the Georgia Court of Appeals or the Supreme Court of Georgia. Appeals may follow by right directly from the judgment in your case, or may be allowed earlier with an “interlocutory” appeal depending on the issue. A knowledgeable attorney can spot many potential errors in your case and maximize your chances of winning on appeal.

The cost for an appeal case in Georgia can vary widely depending on several factors: the length of trial, the age of your conviction, the nature of the legal challenges, and the number of charges of conviction. You should contact our office for a free consultation so we can better understand the unique facts and circumstances of your case in order to discuss a fee for representation.

While criminal appeals generally succeed only around 12 percent of the time, an experienced appellate attorney can help get your case heard on the merits where that percentage increases considerably. Garland, Samuel & Loeb has assisted clients with appeals for nearly 100 years, succeeding now for three generations.