Our chief adult probation officer has been served with a federal writ which is attacking the validity of 2 state felony convictions which I obtained. The defendant received probation. The writ is signed by an attorney but the writ is handwritten using the form probably used by state convicts. At the top of the form, it says "PETITION UNDER 28 U.S.C. SEC. 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY." The writ was apparently served upon the AG pursuant to an order by a federal magistrate signed on November 27, 2007. This order requires a response within 40 days. The AG just wrote our chief adult probation officer and said that they could not handle the writ. I am the appellate section in the office and I am stumped. Unfortunately, I don't even think that I'm licensed to practice in federal court. The AG cced the County Attorney with his letter to the chief adult probation officer but I'm the one most interested in protecting these convictions. But then again I don't know that I have the authority to represent the probation office. Any ideas, guidance, or help would be GREATLY appreciated. Mike

[This message was edited by ML on 12-20-07 at .]

Is the AG not taking the case because it doesn't involve pen time? Was there a state writ at some point before this?

I think the AG's position is probably that the respondent is a county entity rather than a State entity, and therefore not nominally their client.

It's not. That doesn't mean you don't have an interest or shouldn't assert whatever interest on behalf of the state, but CSCD is a special statutory entity, not a part of the county. CSCD employees aren't county employees, and CSCD doesn't answer to the county.

I don't see how the CSCD is the proper party to be responding. The State got the conviction. The DA should be served. The probation officers might be witnesses but not a party.

Has there been a previous state writ?

It may be the Sheriff who is listed as the respondent. I'm aware of a limited number of similar federal writs challenging probated sentences that have been handled by counties rather than the AG. One of my folks has handled a couple. If you need some help on that, call us at 972-548-4323. Did the AG's decline on the basis of the identity of the proper respondent, or conflict of interest, or what?

Sorry, I was out of town with no access to this site... There was a previous state writ but it was dismissed by the CCA because there had been no probation revocation. The AG can't handle it because the defendant is not in prison. However, they have discussed the matter with me on the phone since my post and they have been very helpful. The defendant raises two points which appear to be sufficiency of evidence claims - "The defendant did not commit (the crimes) as a matter of law." The defendant also raises ineffective assistance (which was raised on direct appeal). JohnR, thanks for the offer of assistance. Either myself or someone from my office will give you a call next week. Thanks to all and have a Merry Christmas!