What is a petition for writ of habeas corpus?

Habeas corpus roughly translates to "you have the body." If you have ever been in a criminal court, you may have heard the bailiff say, "We have the bodies up here." This is how people in custody are commonly referred to.

A writ of habeas corpus is an order by the court to bring the prisoner forth to determine whether that prisoner is being held in violation of the law. In addition to challenging wrongful convictions, a petition for writ of habeas corpus may also be used to challenge the conditions of custody; for example, if a prisoner is not getting proper medical care. Habeas corpus is also - but very rarely - used in child custody proceedings.

 

The writ of habeas corpus is ancient in Anglo-American law. While a petition for writ of habeas corpus is typically related to a criminal matter, the petition for writ of habeas corpus is not a criminal proceeding. It is a civil proceeding. The petition is a lawsuit against the person or entity taking custody of the petitioner. For example, the caption of a petition for writ of habeas corpus would read, "John Roe, Petitioner versus Robert Doe, Warden of California State Prison, Corcoran."

A successful petition for writ of habeas corpus will result in the issuance of an "Order to Show Cause" ordering that the custodial agency (represented by the Office of the Attorney General) show cause as to why the petition should not be granted. Where it is granted, the court will entertain an evidentiary proceeding pursuant to the prisoner's claims. The petition for writ of habeas corpus is the vehicle for new found evidence, including DNA evidence.

A petition for writ of habeas corpus may be taken in California state court or in federal court. The petition may be taken at any level of the court system. The rules for habeas petitions are increasingly complex. Further, in 1996 and 1997, laws were enacted that strictly limited the time for bringing habeas petitions in federal court.

The federal petition for writ of habeas corpus holds the state court to answer for any violation of federal constitutional protections. The interplay between state and federal law respects the independence of local laws while assuring that the accused has the basic protections afforded under the United States Constitution.

Because of time limitations, anyone considering a petition for writ of habeas corpus should consult a qualified attorney as soon as possible.