Constitutional Problems on Appeal, Collateral Attack, Habeas Corpus

Question 1

Is there a federal constitutional right to an appeal?

Answer 1

No

Question 2

What is the rule with regards to “equal protection” and “right to counsel on appeal”?

Answer 2

IF an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than rich violate EQUAL PROTECTION.

THUS –> indigents MUST be given counsel at

1. first appeal granted to all as a matter of right; AND
2. appeals of guilty plea and Nolo contender

HOWEVER –> in jdxns w/ 2nd tier discretionary review by highest court, indigent need not be provided w counsel for 2nd discretionary appeal

Question 3

What is the rule w regards to retroactivity and rules of Criminal procedure?

Answer 3

If SCOTUS announces new rule of Crim pro (ie..not dictated by precedent) in a case on direct review, rule must be applied to all other cases on direct review

Question 4

What is the rule w regards to availability of collateral attack?

Answer 4

After appeal is no longer available, D’s may generally still attack their convictions collaterally

Question 5

Does indigent have right to appointed counsel at habeas corpus proceeding?

Answer 5

No

Question 6

What is the burden of proof in habeas corpus proceeding?

Answer 6

Petitioner must show unlawful detention by PREPONDERANCE OF EVIDENCE

Question 7

When may D bring habeas corpus proceeding?

Answer 7

Generally, when he is in custody.

• Including ppl who haven’t fully served their sentences.

Question 8

May state appeal grant of writ of habeas corpus?

Answer 8

Yes