Tough Standard of Habeas: Why Most Cases Do Not Win

Jason T. Gain, Esq. represents clients in criminal appeals and habeas petitions across West Virginia. This post is for information only and is not legal advice. 

If you or a loved one has been convicted of a crime in West Virginia, you may have heard the term habeas corpus. It can sound like a second chance, a way to fix what went wrong at trial. Here is the hard truth: most habeas petitions do not succeed.

Why not?

Because the standard is very tough.

I've outlined main types of claims and why they rarely work.

Ineffective Assistance of Counsel

This is the most common claim. Many people say, “My lawyer messed up.” Courts do not overturn convictions just because an attorney made mistakes. There is a strict two part test:

1. Was the lawyer’s performance deficient?

2. Did that deficiency change the outcome?
   

You have to prove both.

At trial: Missed objections or weak cross examination usually are not enough. You must show the verdict likely would have been different.

At a plea hearing: You must show that, with correct advice, you would not have pled guilty, and that turning down the plea would have been a rational choice. Courts are skeptical, especially when the plea avoided a harsher result.

At sentencing: Complaints about a bad sentence usually do not qualify unless the lawyer failed to raise a legal argument that would have required a different outcome.

Newly Discovered Evidence

Courts treat new evidence carefully. To have a chance, it must be:

1. Truly new, not something you could have found earlier with reasonable effort

2. Credible

3. Likely to change the result at trial

Example: A witness who takes back a story often is not enough. Judges know people change stories for many reasons, including family pressure, regret, or sympathy.

Brady, Giglio, and Napue Claims (These involve misconduct by the prosecution)

• Brady means the State hid favorable evidence

• Giglio means the State hid deals or benefits given to witnesses

• Napue means the State allowed false testimony to stand

These claims look strong on paper, but they are difficult in practice. You must show not only that evidence was hidden, but also that it would have changed the verdict.

As tough as it is to hear, small inconsistencies or minor omissions do not qualify.

Change in Law

Sometimes the law changes after a conviction, and not always in the defendant’s favor.

For example, West Virginia courts narrowed the scope of kidnapping. Restraint that is only incidental to another crime, such as robbery or sexual assault, is not automatically a separate kidnapping. That correction mattered, because older jury instructions allowed a much broader theory.

Later, the Legislature amended the kidnapping statute in a way that made it tougher again.

Because of this, some people are still serving sentences that grew out of older and broader understandings of the law, based on instructions that would not be proper today. This area remains active and open to challenge, but success is not guaranteed. Courts may treat the issue as waived if it was not raised earlier, and not every change in law applies to past cases.

The Reality of Habeas Relief

Habeas is not a second trial, and it is not a redo of your appeal. It is a narrow remedy for constitutional errors so serious that they undermine the fairness of the whole proceeding. That is why most petitions do not win.

If you do have a strong habeas claim, it is because something truly significant went wrong.

So, the bottom line is this: if you are thinking about a habeas petition, set realistic expectations. Success is rare, but not impossible. The key is to identify genuine legal errors that meet the strict standards, and to leave out the rest.

Jason T. Gain is an experienced criminal defense attorney in West Virginia focused on criminal appeals and habeas corpus petition. He accepts private clients for select post conviction matters statewide.