The writ of habeas corpus is a court order that people seek to challenge an unlawful restriction of their liberties by the government.1 In California, it is sought primarily by criminal defendants who want to challenge an aspect of their conviction or the conditions or their confinement.
To obtain a writ of habeas corpus, a person files a petition for writ of habeas corpus.2 This is commonly called a “habeas petition.” The person that files a habeas petition is called the “petitioner.”
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The Meaning of “Habeas Corpus”
A writ is an order that commands a government entity to take a certain action or refrain from doing something. There are many different kinds of writs, and they each serve different functions.4
In the habeas context, the writ was traditionally a court order that required the government entity who had custody over “the body” of the petitioner to bring them before the court.5 The court would then decide if the petitioner’s liberty was indeed restrained in an unlawful way,6 and it would then order the appropriate relief (if any) to cure the violation.7
That might sound complicated, and the exact procedure has changed quite a bit over the years,8 but the actual concept is simple:
Habeas petitions are a way of attacking court proceedings or governmental actions if they resulted in an improper restriction of liberty, like imprisonment or probation.
They can be used to challenge criminal convictions, criminal sentences, parole denials, the conditions of an inmate’s confinement, probation revocations, or other court orders.9 Habeas petitions are often a last resort for people who are unable to obtain relief through other means.
The Benefits of Filing a Habeas Petition
Habeas petitions are one of the most common ways to challenge an aspect of a criminal case.10 More than 8,000 habeas petitions are filed in California state courts during most years.11 And more than 1,000 are usually filed in California federal courts.12
Their popularity is due to the fact that they offer defendants more flexibility in pursuing their desired relief than other methods. Some examples of this flexibility include:
- New evidence may be allowed. Unlike many post-convictions procedures, habeas petitioners can present new evidence to support their claims.13 New evidence can be very important because court records of the previous criminal proceedings will often be silent on critical constitutional questions.14
- Diverse problems can be addressed. Habeas petitions can be used to challenge a wide variety of injustices. These can range from establishing actual innocence15 to modifying a single condition of probation.16
- Deadlines are somewhat flexible. Unlike many court procedures, there is no formal deadline for bringing a petition for writ of habeas corpus.17 Petitioners must, of course, avoid unjustified delay, but as long as the petition is filed “reasonably promptly” it is considered timely.18
- Relief can be specially crafted. In habeas proceedings, the court is permitted to fashion the relief that “the justice of the case may require.”19 This means that the court can look at the facts of the specific case.
There are limits to each of these benefits, but they demonstrate the underlying purpose of habeas petitions: to ensure that justice was done.20
Finding the Right Attorney is Important
Habeas petitions can be filed with or without an attorney. For those interested in filing a habeas petition without a habeas corpus attorney, California state courts provide a self-help form, which can be found here. There are also self-help resources available online for federal habeas petitioners.
If possible, it is normally a good idea to retain a habeas corpus attorney to prepare the petition. A competent, experienced attorney will be able to identify the best arguments and craft them in a way that courts will understand. So, although there is never any guarantee of success, an attorney might be able to increase a petition’s chances.
Retaining an attorney can also help avoid many of the pitfalls of preparing and filing a habeas petition. In many cases there are procedural barriers that non-lawyers don’t usually know about. A habeas corpus attorney can sometimes help overcome those barriers.
There can also be risks in filing a habeas petition. For example, there might have been an error in the trial court that benefited the prospective petitioner. That error can sometimes be discovered and corrected during a habeas petition, and the petitioner could be left worse off than they were before. A habeas corpus attorney can help identify those risks and provide advice about how to address them.
But not all attorneys are created equal. Some attorneys have little or no experience in filing habeas petitions or appellate briefs. Others lack passion for their work or are mediocre writers. So, if you are looking for an attorney, it is important to find a high-quality advocate who will skillfully represent your interests.
The process of preparing, filing, and litigating a petition for writ of habeas corpus can be overwhelming. In many cases, the petition is an uphill battle.
If you are interested in retaining a habeas corpus attorney to help you, I invite you to call me at (949) 537-2228 or send me an e-mail at email@example.com and we can discuss whether I am a good fit for your case.
I am passionate about my work, and I welcome new prospective cases.
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Pen. Code, § 1473; Gomez v. Superior Court (2012) 54 Cal.4th 293, 301.Footnote 1
Pen. Code, § 1473, subd. (a).Footnote 2
See Pen. Code, § 1481; People v. Romero (1994) 8 Cal.4th 728, 738, fn. 4 [“The writ of habeas corpus ‘gets its name from the portion of the writ commanding the custodian to have the body (habeas corpus, in Latin) of the detained person before the court or judge at the time specified in the writ.'”].Footnote 3
See, e.g., Kings County v. Johnson (1894) 104 Cal. 198, 203 [“‘[C]ourts and their judges shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by, or on behalf of, any person in actual custody in their respective counties.'”].Footnote 4
People v. Romero (1994) 8 Cal.4th 728, 738, fn. 4; Pen. Code, § 1477.Footnote 5
See Pen. Code, § 1473, subd. (a); 28 U.S.C. § 2254.Footnote 6
Pen. Code, § 1493.Footnote 7
See Cal. Rules of Court, rules 4.550–4.552.Footnote 8
In re Catalano (1981) 29 Cal.3d 1, 8.Footnote 9
See Pen. Code, §§ 1473–1508; 28 U.S.C. §§ 2241–2255.Footnote 10
See Jud. Council of Cal., Statewide Caseload Trends at p. 80 (2014).Footnote 11
See Bureau of Justice Statistics, Federal Habeas Corpus Review: Challenging State Court Criminal Convictions at p. 9 (1995), available here.Footnote 12
In re Carmen (1957) 48 Cal.2d 851, 868–869; contra, Redsted v. Weiss (1945) 71 Cal.App.2d 660, 666 [“Applications [in direct appeals] to produce additional evidence . . . will be granted only in exceptional cases.”].Footnote 13
E.g., People v. Gray (2005) 37 Cal.4th 168, 207 [habeas corpus is more appropriate than a direct appeal in ineffective assistance of counsel claims when the record is silent on the reason for defense counsel’s actions].Footnote 14
In re Richards (2012) 55 Cal.4th 948, 959–960 [“[H]abeas corpus relief is appropriate if the petitioner presents new evidence that unerringly establishes innocence.”].Footnote 15
In re Glenn K. (1977) 74 Cal.App.3d 342, 346 [“Petitioner properly sought relief from this invalid condition of probation by petition for writ of habeas corpus.”].Footnote 16
Pen. Code, §§ 1473–1508; In re Reno (2012) 55 Cal.4th 428, 459–460; In re Sanders (1999) 21 Cal.4th 697, 703–704.Footnote 17
In re Clark (1993) 5 Cal.4th 750, 765 [“It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief.”]; In re Reno (2012) 55 Cal.4th 428, 459.Footnote 18
Pen. Code, § 1484; In re Crow (1971) 4 Cal.3d 613, 619.Footnote 19
In re Application of Jacinto (1935) 8 Cal.App.2d 275, 276 [“The purpose of a writ of habeas corpus is to test the validity of the process upon which a person is restrained and the jurisdiction of the court issuing such process.”].Footnote 20