A blog reader (who will remain anonymous) posted this question asking for advice.  So, here is the question and answer.  Feel free to comment or ask your own question in email at info@GenoLaw.com or to as a comment to this blog at www.GenoLawBlog.com.  Here’s what happened.

Question: I was arrested on December 1, 08 in Spotsylvania,Va. The police didn’t have an arrest warrant and they didn’t read me my rights. I later found while being held in custody that someone they arrested said I was involved with drug trafficking. Police never found any drugs or any evidence of such. While under arrest, the police asked me about different people; some I knew and some I didn’t.  Apparently, those people were providing information about me, saying I was taking money from different sources. The police also said they had me on tape making a deal (not true because the tape turned out to be only a detective on tape speaking without anyone in response). My court appointed lawyer said initially we had a good case and should go to trial.  In the second day of trial, he advised me to take a plea. I took a guilty plea so; so, can I petition for writ of habeas corpus?

Answer:  This is a question that requires more facts before I could really help you but here is a little information on the writ of habeas corpus. The writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). It is typically filed by a person serving a jail sentence and that sentence was entered by use of an erroneous ruling by the court. So here is the question. What error did the court make when entering your sentence? Also, are you in jail?

Most recently, the writ has been used by people who are being removed (deported) by immigration authorities because their rights were incorrectly relayed to them when they entered a plea. See Padilla v. Kentucky, 129 S. Ct. 1317 – Supreme Court 2009. Sounds like your lawyer was working on the case and I am not sure why you plead, knowing you did not do the act. Since I can’t give an answer without knowing the Court’s error, I can offer another unsolicited piece of advice.  It sounds like you might benefit from it.  When police question you, you have the right to remain silent.  If your age has  digits in it, police who ask you questions are not your friend.  See my blog post on the subject at “The Fifth Amendment is Alive and Well, So Why Did You Say That?”