A writ of habeas corpus is a legal petition brought in front of judges in criminal cases by an imprisoned or detained inmate, in which the person challenges their conviction or sentencing conditions. It is one of the last tools a prisoner has to challenge a conviction or sentence, coming after the prisoner has filed all possible appeals.
The California rules regarding writs of habeas corpus are found in Penal Code sections 1473-1508 PC.
Under California law, three requirements must be met before a person can file a habeas corpus writ. These include:
- the petitioner must be “in custody,”
- the petitioner must have exhausted all other remedies (filed all possible appeals), and
- the issue(s) raised in the petition must be one(s) not already resolved by a court of appeal.
Examples of issues where a court has granted a petition for writ of habeas corpus include:
- the petitioner was convicted under an unconstitutional law/invalid statute,
- the petitioner was subject to ineffective assistance of counsel,
- there were instances of prosecutorial misconduct in the lower courts,
- the petitioner was incompetent to stand trial,
- new evidence was discovered in the case,
- false evidence,
- laws affecting the case have been changed, and
- the petitioner suffers from challenging conditions of confinement.
If a court grants a petition, then it may order the government to:
- release the petitioner,
- reduce the petitioner’s charges,
- modify the petitioner’s sentence or sentencing conditions, or
- order a new trial.
If a court denies a petition, then the petitioner can seek alternative relief by filing a habeas corpus petition in federal court.
Our California criminal defense attorneys will address the following in this article:
- 1. What is a habeas corpus?
- 2. What is the process for bringing a habeas corpus petition?
- 3. What are the grounds for writ of habeas corpus?
- 4. What happens if the petition is granted?
- 5. What are my options if the petition is denied?
- 6. Do I need an attorney?
1. What is a habeas corpus?
A writ of habeas corpus is a petition by a prisoner or other detainee that challenges their imprisonment/conviction or sentencing conditions.
The writ of habeas corpus is supposed to be “an extraordinary remedy,” meaning that it is used only in extreme and unusual circumstances.1
It is the last method a convict has to challenge a conviction or sentence, coming after all appellate options have been exhausted.
The right to bring a writ is guaranteed by the California Constitution.2 For centuries, it has been considered the last hope for justice for people who have been wrongly imprisoned.3
2. What is the process for bringing a habeas corpus petition?
A person convicted of a crime must file a habeas corpus petition with the district court, typically the California Superior Court.
Three requirements must be met before a person can successfully file a writ of habeas corpus petition. These are:
- the petitioner, or person bringing the writ, must be “in custody,”4
- the petitioner must have exhausted all possible remedies (filed all possible appeals),5 and
- the issues raised in the writ must be new, or unique to those, raised on appeal.6
As to this last requirement, note that legal claims previously raised and rejected on direct appeal ordinarily cannot be reraised in a petition for a writ of habeas corpus. Exceptions, though, do apply.7
For purposes of the first requirement, “in custody” means that a person is either:
- confined in state prison or county jail,
- out on parole, probation, or bail, and/or
- released on one’s own recognizance while charges are pending.
Note that there are no strict deadlines or time limits (“statute of limitations”) for when a person must file a writ of habeas corpus. California’s criminal laws state that the petitioner must file a writ:
- when the petitioner is in custody, and
- in a “timely” manner (as determined by the facts of the case).8
In Los Angeles County, the District Attorney’s Office has a Habeas Corpus Litigation Unit (HABLIT) whose mission is to investigate every potentially meritorious claim.9
3. What are the grounds for writ of habeas corpus?
When drafting a writ, a petitioner typically has to raise one of the following issues/constitutional errors (and provide supporting facts) to succeed:
- the petitioner was convicted under a law that is unconstitutional,10
- the petitioner did not have a competent lawyer (or no lawyer was provided),11
- there were instances of prosecutorial misconduct,12
- the petitioner was incompetent to stand trial,13
- false evidence,
- new evidence was discovered showing the petitioner’s innocence,14
- there have been changes in the law since the petitioner was convicted,15 and
- the petitioner suffers from unsafe or challenging conditions of confinement.
Habeas corpus writs can include supporting information, such as affidavits (declarations made under penalty of perjury). And the court may hold an evidentiary hearing on the writ.
4. What happens if the petition is granted?
If a court grants a petition, then it issues a writ that may order the government to:
- release the petitioner,
- reduce the petitioner’s charges, or
- modify the petitioner’s prison sentence or sentencing conditions.
Note, though, that there are usually several steps before a court renders an official decision on a habeas corpus petition.
For example, if the court finds that the facts alleged in a petition are true, then it issues an order to show cause and invites the government to file a response to the petition. This response is known as a “return.”16
The petitioner can then file an answer to the return, which is referred to as a “traverse.”17
After this document is filed, the court may hold a hearing and consider evidence presented by both the petitioner and the government. A decision is rendered at the completion of this hearing.
5. What are my options if the petition is denied?
A petitioner can file a habeas corpus petition in federal court if it gets denied by California state courts, including the California Supreme Court.
Unfortunately, federal law takes an extremely strict approach to habeas corpus petitions challenging state sentences.
For example, a petitioner can only get federal habeas corpus relief if they can show that:
- their custody violated the United States Constitution or federal law,18
- the petitioner has exhausted all possible remedies available in California,19 and
- the California courts made an obvious mistake in the case.20
Note that federal law has a one-year deadline for filing a writ of habeas corpus. But the deadline can be extended (“tolling”) for good cause.21
6. Do I need an attorney?
Persons contemplating filing a habeas corpus petition should seek assistance from an experienced criminal defense attorney.
An attorney is critical because they can help by:
- finding any applicable case law that might help support or booster a petition,
- ensuring that a petition is timely filed without substantial delay and with due diligence and in accordance with any court orders,
- reviewing court records of lower courts to determine those issues that can support a habeas corpus petition,
- making certain the petition is filed with the correct lower or higher court in accordance with court rules, and
- filing a successive petition in federal court if it is denied by California courts.
For additional guidance or to discuss your case and constitutional rights with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group. Our appeals lawyers represent clients in trial courts and appellate courts throughout California, including those in Los Angeles, San Francisco, and San Diego.
- In re Clark (1993) 5 Cal.4th 750. See also In re Robbins (Cal. 1998) 18 Cal.4th 770. The defendant is “petitioner”, and the “respondent” is the petitioner’s custodian (usually a warden). See Form M-275, approved for Optional Use by the California Judicial Council.
- Cal. Const., art. I, § 11 – Habeas corpus.
- In re Clark (1993) 5 Cal.4th 750.
- California Penal Code 1473 PC.
- In re Harris (1993) 5 Cal.4th 813. See also In re Vaquera (2019) 39 Cal. App. 5th 233.
- See, for example, In re Rayford (2020) 50 Cal.App.5th 754.
- See same.
- See in, for example, In re Brown (2020) 45 Cal.App.5th 699; as to “timeliness”, see Robinson v. Lewis (2020) 9 Cal.5th 883. See also California Rules of Court 4.551. Habeas corpus proceedings (“Informal response: (1) Before passing on the petition, the court may request an informal response from: (A) The respondent or real party in interest; or (B) The custodian of any record pertaining to the petitioner’s case, directing the custodian to produce the record or a certified copy to be filed with the clerk of the court.”)
- LADA Special Directive 20-10.
- In re Davis (1966) 242 Cal.App.2d 645.
- People v. Campbell (2020) 51 Cal.App.5th 463. See also People v. Mickel (2016) 2 Cal.5th 181.
- People v. Kasim (1997) 56 Cal.App.4th 1360. See also People v. Uribe (2011) 199 Cal. App. 4th 836.
- California Penal Code 1473 PC. See also People v. Rogers (2006) 39 Cal. 4th 826.
- In re Dennis, (1959) 51 Cal.2d 666.
- In re Martinez (2017) 3 Cal.5th 1216.
- See, for example, People v. Duvall, (1995) 9 Cal.4th 464.
- See same.
- See same.
- 28 United States Code (“U.S.C.”) 2254.
- See same.
- 28 U.S.C. § 2244(d).