If a petition for a writ of habeas corpus (dependency case) under §2241 is denied by a highest level of a state court and my trial is already over in the state court, can I file a new habeas corpus under §2254 with a U.S. district court instead of state court directly? I understand that I have to start a new petition with a state court under §2254 in order to move the case to the U.S. district court to prove that I exhausted all remedies. However, I am just asking this question as I believe that there is serious violations of U.S. constitutions.
1 Answer from Attorneys
It is important that your state remedies have been exhausted. If you have the right to an appeal from your conviction and you fail to exhaust that remedy you may be barred from use of a habeas corpus writ, because of the failure to exhaust your state remedy. Your prior habeas corpus even if denied by the highest state court may not exhaust your state remedies by appeal. It is not clear from your question whether you have exhausted your state remedies.
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