Hernández, sentenced to two life terms plus 15 years and held in a Victorville, California maximum security penitentiary, filed the appeal on August 16 before the Miami court of Judge Joan Lenard, the same judge who sentenced all of the Five in 2001. The 65-page defense reply includes new arguments related to this specific legal option.

This reply was the most recent step taken after the government's response to the defense appeal memorandum, filed in October of 2010 in the Miami court.

Among the documents submitted by Gerardo's lawyers on this occasion are three appendices with a sworn statement by Attorney Paul McKenna, in which he admits that errors were made in Gerardo's initial defense.

Additionally addressed in another two documents is the payment of $250,000 to Miami journalists who were instructed to demonize the accused and create an environment which would ensure a guilty verdict.

The standard processing of Gerardo's case has legally ended, but the defense resorted to this extraordinary procedure which is available only once to defendants who have exhausted all other appeal options.

A habeas corpus appeal is filed by a defendant when he or she believes fundamental rights protected by the Constitution have been violated, asking the court to reconsider the sentence.

This past April, the prosecuting attorney Caroline Heck Miller, representing the U.S. government, requested that the Miami court reject Gerardo's habeas corpus appeal.

That was why, in August, Cuba's National Assembly made an urgent statement supporting Gerardo, given that only a few days remained within the appeal time frame.

As on previous occasions, more obstacles were presented. In addition to his already difficult situation in prison, communication with his lawyers and Cuban consular officials was obstructed; his access to correspondence was limited and interrupted, including that of a legal nature associated with the case.

Thus the Cuban parliament demanded an immediate end to the unjust and illegal situation and called for solidarity, especially with Gerardo Hernández, who in 2009 was denied a sentence reduction, when the sentences of Ramón Labañino, Antonio Guerrero and Fernando González were found excessive and reduced.

The arbitrary nature of his treatment is underscored by the fact that he has been repeatedly denied visits with his wife Adriana Pérez.

Graciela Ramírez, coordinator of the International Committee for the Freedom of the Cuban 5, told Prensa Latina, "We are terribly worried since this man has already been in prison for 13 years, like his four brothers, and now they're making things worse, trying to prevent his arguments being heard."

The habeas corpus appeal by Gerardo Hernández Nordelo is based on two fundamental issues. First is government interference. Payments to Miami journalists to promote fabrications about the Five have been documented.

It also presents evidence – which was not allowed in the original trial – demonstrating Gerardo's absolute innocence in the downing of two light aircraft belonging to Brothers to the Rescue, an anti-Cuban terrorist organization based in Miami, on February 24, 1996. Gerardo was found responsible for these events and given a life sentence.

The habeas corpus appeal includes a request that the U.S. government release satellite images showing that the planes were shot down over Cuban territorial waters. This would demonstrate that the downing was a legitimate response in defense of Cuba's national sovereignty. If this is not so, what is the U.S. afraid of? "Why has it refused to release these images?" Graciela Ramírez asked.

A decade ago, on May 25, 2001, the White House admitted that it had no evidence to support the charge of conspiracy to commit murder brought against Gerardo and requested that it be withdrawn.

This is substantiated in an official document submitted to the appeals court, entitled Emergency Petition for Writ of Prohibition.

"In light of the evidence presented in this trial, this [the instructions to the jury] presents an insurmountable hurdle for the United States in this case, and will likely, result in the failure of the prosecution on this count," the document reads.