Jennifer Hernandez is dedicated to protecting your constitutional rights during your criminal appeals. Jennifer handles cases on direct appeal and in post-conviction proceedings, as well as state and federal habeas corpus actions. Every criminal defendant is entitled to a constitutionally-sound trial or plea hearing. The appeals process is the means to correct constitutional violations which occur during this process.
Everyone is entitled to have their constitutional rights protected. Jennifer is experienced in handling cases involving violent crimes, theft crimes, sexual offenses, and drug and weapons violations.
Areas of Practice
Direct Appeals
After a criminal defendant has been convicted and sentenced by the judge or jury, the defendant may file a notice of appeal with the clerk of the court which issued the judgment. Once the notice of appeal is filed, the appealing party (the appellant) must file a record on appeal. The record on appeal consists of the trial and sentencing transcripts (and other relevant pre-trial transcripts) and the legal file containing court orders and documents filed with the trial court which are relevant to the claims that will be raised in the appeal.
The appellant will then file an opening brief raising claims of trial error. Trial error may include the court’s suppression of admissible evidence at trial, the improper admission of evidence at trial, improper jury instructions, improper and prejudicial comments made by the prosecution, and the failure to prove the elements of the charged offenses beyond a reasonable doubt.
The Attorney General, representing the State of Missouri, will then file their brief. The appellant may then file a reply brief, addressing any factual or legal errors in the Attorney General’s arguments.
After the parties have briefed the issues, the court of appeals may schedule oral argument in the case to clarify questions of fact and law. Other times, the case will be submitted on the briefs without oral argument.
Following the court’s decision, the unsuccessful party may appeal to the Missouri Supreme Court. An application for transfer to the Supreme Court is proper when there are questions of general interest and importance, the existing law requires re-examination, and the opinions of the Missouri appellate courts are contrary to the decision being appealed. Review is discretionary.
* There are strict timelines which govern these filings.
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Post-Convictions Relief Proceedings
A post-conviction motion is used to challenge a criminal conviction based on facts outside of the trial/plea record. The most common type of post-conviction claim involves the ineffective assistance of trial or plea counsel. Claims of ineffectiveness based upon appellate counsel’s performance may also be raised. If a defendant was convicted following a trial, a post-conviction motion will be filed under Rule 29.15. If a defendant pled guilty to the charges, the post-conviction motion will be filed under Rule 24.035.
Post-conviction claims may include claims of ineffective assistance of trial counsel in failing to investigate and present exculpatory witness testimony, failing to object to an improper and prejudicial argument by the prosecution, and failing to effectively cross-examine the witnesses of the prosecution.
This process begins with the movant (the individual challenging the conviction) filing a timely pro se motion for post-conviction relief (also called a Form 40) in the trial/plea court which issued the judgment. The movant will then be appointed a public defender or will retain counsel for representation during this process. The attorney will then file an amended motion. Then, the prosecuting attorney will have the opportunity to respond.
The motion court may then hold an evidentiary hearing on some or all of the raised claims. At this hearing, the movant may present evidence in support of their claims. If the claim is refuted by the record or meritless, the court may deny an evidentiary hearing. Regardless of whether an evidentiary hearing is held or not, the court will then issue findings of fact and conclusions of law on each of the movant’s claims.
* There are strict timelines which govern these filings.
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Post-Conviction Appeals
Following the courts decision in the motion court, the unsuccessful party may appeal to the court’s of appeals. The procedure for appealing the decision in nearly identical to that for direct appeal.
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Federal Habeas Corpus
A person who is in custody based on state court convictions may challenge their convictions on the ground that there was a violation of their federal constitutional rights under 28 U.S.C. § 2254.
For a claim raised in state court proceedings, a habeas petitioner may not be granted relief unless the decision of the state court involved:
(1) An unreasonable application of clearly established law as determined by the United States Supreme Court; or
(2) An unreasonable determination of the facts in light of the evidence presented at the state court proceeding.
The federal habeas courts are highly deferential to state court judgments, and claims based on state law may not be raised.
In narrow circumstances, a petitioner may be able to raise federal constitutional claims which were not raised during state court proceedings.
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State Habeas Corpus
In Missouri, an incarcerated individual may petition for a writ of habeas corpus. The person seeking habeas relief is the petitioner and the other party against whom such relief is being sought is the respondent. Habeas petitions are filed in the county in which the petitioner is incarcerated. Typically, the respondent will be the warden of the prison at which the petitioner resides.
A writ of habeas corpus is sought after the petitioner has exhausted all other state remedies. It can be used to raise claims of actual innocence, Brady violations, and jurisdictional defects.
Although there are no time deadline in which to file a state habeas corpus petition, there are certain procedural requirements which must be met. A state habeas corpus petition cannot be used as a substitution or a “second chance” at a direct appeal or post-conviction proceedings. There are frequently procedural bar limitations which prelude an incarcerated individual from pursuing state habeas relief.
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Other Areas
There are also other judicial remedies which can be sought to assist an incarcerated individual in obtaining relief. These remedies are case-specific and can include declaratory judgment actions, motions for DNA testing, and writs of prohibition and mandamus. In certain circumstances, an application for clemency can assist an incarcerated individual obtain relief.
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