If you or a loved one have been convicted in the state courts of West Virginia, and the conviction has been upheld on appeal, you are permitted to file a habeas petition to challenge the constitutionality of your conviction and sentence. There are a number of ways to attack your sentence. Two of the primary methods are ineffective assistance of counsel, and prosecutorial misconduct. The standard habeas claims in West Virginia are set forth in a case known as Losh v. McKenzie, with the claims set out in what is called a "Losh List." It is important to use an experienced and diligent habeas attorney, as any claims that are not asserted in the first habeas petition will usually be given up forever. Attorney Jeremy B. Cooper has litigated dozens of state habeas claims in West Virginia, with outcomes including the 2019 immediate discharge of a client who had served four years of a 75 year maximum sentence, and the reduction of another client's unconstitutionally disproportionate sentence by 35 years.
In West Virginia, there is no statute of limitations for filing a post-conviction habeas petition. However, it is still crucial not to wait too long to file, because the very strict timelines for federal habeas will run until the state habeas petition is filed. There is typically a one year statute of limitation for filing a federal habeas action from the end of the state direct appeal process. Therefore, if you wait ten months to file your state habeas petition, you will only have two months in which to file your federal habeas petition when the state case is resolved. If you wait more than a year to file your WV habeas petition, you will most likely give up any right to assert a federal habeas claim in the future.