If you have been convicted of a crime in California…and have tried and failed to overturn your conviction on appeal…you may think that this means you have no choice but to accept your conviction and serve your sentence.
But, in fact, that’s not true. There is one more tool that you may use to challenge your conviction: the writ of habeas corpus petition.
“Habeas corpus” is a Latin phrase that means, “that you have the body.” 1 The “body” in the phrase means the body of someone who is in state custody because they allegedly committed a crime.
In California, anyone who is in prison, or otherwise restrained in some way by the criminal justice system, can bring a writ of habeas corpus petition to challenge their imprisonment.2 The right to do this is guaranteed by the California Constitution.3 Traditionally, the writ of habeas corpus has been known as the “Great Writ.” For centuries it’s been the last hope for justice for people who have been wrongly imprisoned.4
That’s the good news. The bad news is that it’s not easy to get a conviction overturned by using a habeas corpus petition. If the jury simply got it wrong and found you guilty when you were innocent, the writ of habeas corpus probably won’t help you in California.5 But it CAN help you if something went very wrong at your trial…like a prosecutor introducing false evidence, 6 or your trial lawyer being incompetent.7
Even if you’re not challenging your conviction, you can still bring a writ of habeas corpus in California to challenge the conditions under which you’re serving your sentence.8 Because of how common jail and prison abuse are in California state prisons, the writ of habeas corpus plays an important part in protecting prisoners’ rights.
If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.
A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy” — that is, it’s supposed to be used only in extreme and unusual circumstances.10 Because of this, the best way to understand it is to first understand the important limits on when and how it can be used.
You can only bring a habeas corpus petition if the state has you in custody…if, because of criminal charges or a criminal conviction, your ability to move around freely is restricted.11
So, of course, you can bring a writ of habeas corpus petition if you are in
state prison or county jail. But you can also bring a habeas corpus petition if you are:
- Out on parole or probation (because both parole and probation involve restrictions on a person’s liberty), 12
- Out on bail, 13 or
- Released on your own recognizance while charges are pending.14
As a general rule, you can’t file a petition for habeas corpus unless you’ve done something that judges call “exhausting your remedies.” What this means is that you have to try every other solution that the system makes possible for you before you can try a writ of habeas corpus.15
What this means in practice is that you have to file all possible appeals of a California criminal conviction before you can try a writ of habeas corpus.16
Example: Rick is sentenced to an extremely long prison term under California’s three strikes law. He immediately files a habeas corpus petition in which he raises a number of objections to his conviction and sentence. But the petition will be rejected because he did not first file a standard appeal.
Not only that, but you have to appeal on the same basis on which you will file your habeas corpus petition.17 In other words, any arguments that you make in your habeas corpus petition also need to have been made in your appeal.
Also, in California, courts usually won’t consider a habeas corpus petition that is based on issues that were already considered and resolved on appeal.18
In other words, if you appealed your conviction arguing that the jury selection process was flawed, and the appeals court ruled against you, you can’t then file a successful habeas corpus petition arguing that the jury selection process was flawed. This rule is known as the “Waltreus rule,” after a case in which it was first declared. 19
This may make you scratch your head. We just explained above that you can’t file a California habeas corpus petition based on an argument that you didn’t first raise in an appeal.
Now we’re saying that if you lost on your argument on appeal, you can’t win on it in habeas corpus either. Of course, you wouldn’t be trying habeas corpus at all if you had won on appeal (because if you’d won, you’d probably be out of prison already). It may sound like you’re “damned if you do, damned if you don’t.”
The reason habeas corpus petitions can be helpful in spite of this dilemma is that California courts have carved out a number of exceptions to these rules. If certain kinds of things went wrong with your trial or conviction, then you can win on a habeas corpus petition even if you didn’t file an appeal on the issue, or if you lost on appeal.
Because these exceptions are limited, there are really only a limited number of issues on which it makes sense to base a habeas corpus petition. We’ll discuss those issues now.
As we just explained, California law is such that you can really only bring a successful writ of habeas corpus on the basis of certain issues. Here is a list of the most important of these issues.
You may be able to get relief through the writ of habeas corpus in California if you can show that the criminal law under which you were charged and convicted is unconstitutional. 20
It’s rare for a court to find a law unconstitutional, but it does happen…usually because the law is too vague, or because the law violates a fundamental right guaranteed under the U.S. Constitution or the California Constitution.
Example: As part of a subversive “fashion show” at a restaurant, Jeanne bares her breasts in public. She is arrested and convicted under a law that makes it a crime to violate standards of “public decency.” She files a habeas corpus petition and is released…because the law under which she was convicted is too vague and therefore unconstitutional.21
One of the most common reasons courts grant writs of habeas corpus is because a defendant did not have a competent lawyer at their trial and/or their appeal. This is what is known as an “ineffective assistance of counsel” claim.
You can argue ineffective assistance of counsel in a habeas corpus petition even if you didn’t make that argument in a criminal appeal.22 This makes sense because, if you had an incompetent lawyer, there’s a chance that he or she wouldn’t even have told you that you needed to file an appeal. Also, he or she almost certainly wouldn’t have helped you to make an “ineffective assistance of counsel” argument on appeal!
But in order to get a writ of habeas corpus because your trial lawyer was incompetent, you also need to show that the result in the trial might have been different if you had had a better lawyer.23 In other words, you need to show that your trial lawyer made mistakes that may have made a difference to the verdict, or to your decisions about how to plead to charges.
Example: Billy’s lawyer at his criminal trial told him that the maximum sentence for the crime with which he was charged was thirty-eight (38) years. Billy decides to plead “no contest” to the charges and gets a prison sentence of twenty (20) years instead.
Later, Billy finds out that his first lawyer was wrong, and the maximum sentence was only twenty-seven (27) years. So instead of saving 18 years by pleading no contest, he only saved 7 years.
If Billy had known the actual maximum sentence, there’s a good chance he would have taken his chances at trial rather than pleading no contest. His lawyer’s bad advice made a difference to the outcome. Thus, his habeas corpus petition may be granted, and he may be released from prison.24
It is also possible to get a habeas corpus petition granted if you did not have the money to pay for an attorney and were not given one by the state…or if you were not told that you had a right to get one from the state.25
Habeas corpus petitions may also be granted in cases involving prosecutorial misconduct in California26…something which unfortunately is all too common.
Your habeas corpus petition may be granted if the prosecutor at your trial engaged in certain kinds of bad behavior. These include:
- Presenting false testimony in court,
- Withholding key evidence that was favorable to your case,
- Presenting false evidence that prompted you to decide to plead guilty, and
- Making false statements to the jury.27
California law provides that a person can’t be tried for a crime while they are insane or otherwise incompetent. This is the concept of “competency to stand trial.”
Habeas corpus petitions may be granted on the grounds that the defendant was not competent when he was tried for the crime.28
As with ineffective assistance of counsel, it makes sense that this is considered a legitimate basis for a habeas corpus petition. Habeas corpus petitions exist to correct the kinds of mistakes in the criminal trial process that the appeals process wouldn’t catch. If a defendant didn’t have a competent attorney, or was himself insane during the normal process, there’s a good chance justice wasn’t done at either the trial or the appeals stage.
Another common reason courts grant habeas corpus petitions is that new evidence is discovered after the trial and the appeals process are over.29
But because it’s very rare that all evidence is uncovered during the trial…and therefore very common for new evidence to come to light after the verdict…courts have put strict limits on the kind of new evidence that can justify a habeas petition. California courts have held that the new evidence has to either:
- indicate with total certainty that the defendant is innocent, or
- completely undermine the entire structure of the prosecution’s case.30
Example: Will is convicted of murder. He files multiple appeals and loses on all of them. Years later, someone else comes forward and confesses to having killed the person Will was supposed to have killed. This is enough for a court to grant Will’s habeas petition and release him from prison.31
Example: Jerome is convicted of bribery. The key witness for the prosecution in Jerome’s trial was Tom.
Later, someone named Andy comes forward and says that Tom told him that he had lied at the trial and framed Jerome. Tom denies that this is the case.
Because it’s Andy’s word against Tom’s, the new evidence (Andy’s story) doesn’t indicate for certain that Jerome is innocent. So Jerome’s habeas corpus petition isn’t granted.32
Another valid basis for a habeas corpus petition is a change in the law since the time you were convicted or lost on your appeal.33
This too makes sense, given the purposes of habeas corpus-if the law was such that you were guilty at the time of your trial or appeal, and now is such that you would be innocent, you will need another method outside of the appeals process to challenge your conviction.
Example: Rachel uses marijuana for medical purposes, with her doctor’s recommendation, and cultivates her own. She is arrested and convicted for cultivation of marijuana; she appeals her conviction but loses.
Then California voters pass the Compassionate Use Act, aka the medical marijuana law, under which Rachel’s actions may be legal.
Rachel may be able to file a successful habeas corpus petition and get released from jail…if she can show that the change in law means that what she did is no longer a crime in California.
The California legislature has specifically provided that prisoners can file habeas corpus petitions in order to introduce scientific expert testimony about the syndrome popularly known as “battered woman’s syndrome.” Basically, this syndrome consists of the psychological effects of domestic violence by a spouse or other intimate partner.34
This is only a valid reason for a habeas corpus petition in certain specific circumstances, however. These include:
- Evidence on the effects of domestic partner abuse was not introduced at the original trial, 35
- The conviction was for a violent felony like murder,
voluntary manslaughter, mayhem, attempted murder, or kidnapping, 36
- The crime was committed before August 29, 1996, 37 and
- It’s reasonable to expect that introducing expert testimony on battered women’s syndrome would have changed the outcome of the original trial.38
Finally, another common use of habeas corpus petitions is not to challenge a person’s conviction for a crime…but instead to challenge the conditions under which they are serving their prison sentence.39 This use is especially important, given the horrendous conditions inside many California prisons today, with jail and prison abuse increasingly widespread.
According to Beverly Hills criminal defense and civil rights attorney Neil Shouse:40
“Prison inmates do have civil rights, even though they’re more restricted than the rights of people on the outside. If you’ve been the victim of abuse or medical neglect in prison…and the processes that the prison system provides for challenging these conditions are not helping you…a habeas corpus petition may be a logical next step.”
For all the reasons we just discussed, a California habeas corpus petition is a much more limited remedy than a normal appeal.
However, there is one major way in which a habeas corpus petition is a more flexible tool than an appeal: timing. There are strict timeframes and deadlines to appeal a criminal conviction in California. In contrast, there are no strict deadlines for filing a habeas corpus petition…as long as it is filed while you are in custody.
However, you are not supposed to delay filing a habeas corpus petition for too long…and if you do delay, you’ll have to justify the delay in your petition.41 But any “delay” is measured from the time you find out that you have a good reason to seek habeas corpus relief.42 This can be the day you’re convicted…or it can be years later.
So, for example, if you find out ten years into your prison sentence that someone else has confessed to the crime you are supposed to have committed, you can challenge your conviction through habeas corpus…even though the deadlines for filing appeals will have long since passed.
Habeas corpus petitions go through the courts. But the procedure surrounding them is different from the normal California criminal court process.
You start by filing a petition that sets forth the grounds for relief. You should attach any reasonably available documents that will help your case.43
If there are any questions of fact involved with your petition, the general rule is that you file first in a California superior court. If it is rejected, you may “move up” to courts of appeal and maybe even the California Supreme Court.44
After you file your petition, the judge will make an initial decision on whether you might be entitled to have the petition granted if all the facts you allege in the petition are true. If the answer is no, the petition will be dismissed then and there.45
But if the answer is yes, then the jailer has to file an answer to your petition (this is called a “return”).46 You then file an answer to that answer (called a “traverse”).47
If there are any facts that are in dispute, then the court will hold a hearing in which evidence is presented. Otherwise, the court will simply rule based on the documents that were filed.48
The harsh truth is that most California petitions for habeas corpus don’t succeed. But if you are in custody for a California crime and your California habeas corpus petition fails, you are not completely out of options. There is also the possibility of filing a habeas corpus petition in federal court.
Unfortunately, federal law takes a very strict approach to habeas corpus petitions challenging state sentences.
First, you can only get federal habeas corpus relief if you can show that your conviction or custody violated either the United States Constitution or federal law.49 In other words, you can’t challenge your conviction on the basis of California state law in federal court.
Second, in order to get relief through this route, you will need to show that you have exhausted all remedies available in California (meaning, you have tried both regular appeals and all possible habeas corpus petitions in California courts).50 But you may be able to avoid this requirement if you can show that there was some reason why those state processes were not able to protect your rights.51
And, finally, federal courts won’t grant a petition unless it’s clear to them that the state courts made a really large and obvious mistake in dealing with your claim. The California courts’ decision on any of your claims won’t be overturned unless it was either
- contrary to clearly established federal law, as determined by the Supreme Court of the United States (not by other federal courts), or
- based on a completely unreasonable determination of the facts in light of the evidence.52
This is a hard hurdle to get over…but it’s not an impossible one. State courts make mistakes all the time, due to overwork or the political factors influencing how prosecutors and judges handle criminal cases. Very few federal habeas petitions challenging state sentences are granted…but worthy petitions still have a good shot at leading to some relief.
If you are in federal prison serving a sentence for a federal crime, you will file any habeas corpus petition in federal court (rather than California state court).53
But federal habeas corpus law for federal prisoners is a bit different than for state prisoners, in that a strict deadline applies for filing a petition. You need to make sure that your petition is filed within one (1) year after the latest of:
- the date when your conviction becomes final,
- the date on which the law changes to provide you with a basis for challenging your conviction or sentence, OR
- the date on which the facts (like new evidence) on which you base your petition could have been discovered through reasonable efforts (even if this is earlier than when you actually discovered them).54
Contact us for help…
If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- 1 Black’s Law Dictionary, habeas corpus. (“[Law Latin ‘that you have the body’] (18c) A writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal (habeas corpus ad subjiciendum). • In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of (1) the regularity of the extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence.”)
- 2Penal Code 1473 – Persons authorized to prosecute writ; false evidence. (“(a) Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.”)
- 3 Cal. Const., art. I, § 11 – Habeas corpus; suspension. (“Habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion.”)
- 4 In re Clark, (1993) 5 Cal.4th 750, 763-64. (“The rules governing postconviction habeas corpus relief recognize the importance of the ‘Great Writ,’ an importance reflected in its constitutional status, and in our past decisions. Indeed, the writ has been aptly termed the safe-guard and the palladium of our liberties and is regarded as the greatest remedy known to the law whereby one unlawfully restrained of his liberty can secure his release. The writ has been available to secure release from unlawful restraint since the founding of the state.”) (citations and internal quotation marks omitted)
- 5 See In re Harris, (1993) 5 Cal.4th 813, 829. (“Unlike review on direct appeal, habeas corpus does not simply inquire into the correctness of the trial court’s judgment. The scope of habeas corpus is more limited.”)
- 6 Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence. (“(b) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons: (1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration; or (2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.”)
- 7 See, e.g., People v. Johnson, (1995) 35 Cal.App.4th 1351, 1355.
- 8 Frias v. Superior Court, (1975) 51 Cal.App.3d 919, 924. (“It is well established that inmates of state prisons are entitled to minimum elements of procedural due process in the imposition of prison discipline. The writ of habeas corpus is an indispensable adjunct to that entitlement.”) (citations omitted)
- 9 Our California criminal defense and California immigration attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
- 10 In re Clark, (1993) 5 Cal.4th 750, 764. (“Our cases simultaneously recognize, however, the extraordinary nature of habeas corpus relief from a judgment which, for this purpose, is presumed valid.”)
- 11 Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence. (“(a) Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.”) (emphasis added)
- 12 In re Jones (1962), 57 Cal.2d 860, 861 n.1. (“Actual detention in prison is not an indispensable condition precedent to the issuance of habeas corpus, and persons on parole or on trial are, in a proper case, entitled to its issuance.”)
- 13 In re Catalano, (1981) 29 Cal.3d 1, 8. (“Thus a prisoner released on bail, although not actually confined, is eligible to seek habeas corpus.”)
- 14 In re Smiley, (1967) 66 Cal.2d 606, 614. (“We conclude that habeas corpus is an appropriate remedy in this case even though petitioner is at liberty on his own recognizance.”)
- 15 Ex parte Dixon, (1953) 41 Cal.2d 756, 760. (“The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.”)
- 16 In re Harris, (1993) 5 Cal.4th 813, 829. (“The specialized nature of the remedy itself compels the conclusion that-absent unusual circumstances-the aggrieved party should first appeal before resorting to habeas corpus. In this way, habeas corpus is preserved as an avenue of relief to those for whom the standard appellate system failed to operate properly.”)
- 17 Ex parte Dixon, (1953) 41 Cal.2d 756, 760.
- 18 In re Clark, (1993) 5 Cal.4th 750, 765. (“It is also the general rule that issues resolved on appeal will not be reconsidered on habeas corpus . . . .”)
- 19 See In re Waltreus, (1965) 62 Cal.2d 218, 225. (“These arguments were rejected on appeal, and habeas corpus ordinarily cannot serve as a second appeal.”)
- 20 In re Davis, (1966) 242 Cal.App.2d 645, 649-50.
- 21 Loosely based on the facts of the same.
- 22 People v. Jackson, (1973) 10 Cal.3d 265, 268. (“Denial of the right to effective assistance of counsel is one trial error which is cognizable on collateral review whether or not it was raised on appeal.”)
- 23 People v. Johnson, (1995) 35 Cal.App.4th 1351, 1357.
- 24 Based on the facts of the same.
- 25 In re Smiley, (1967) 66 Cal.2d 606, 625. (“We conclude there was no effective waiver in the case at bar, and hence that petitioner was denied his constitutional right to the assistance of counsel.”)
- 26 People v. Kasim, (1997) 56 Cal.App.4th 1360, 1387. (“Kasim has sustained his burden of proving the prosecution withheld critical discoverable evidence, presented false testimony and made misrepresentations in its closing argument to the jury. Relief by habeas corpus is therefore warranted.”)
- 27 Same.
- See also Penal Code 1473
- 28 In re Dennis, (1959) 51 Cal.2d 666, 673-4.
- 29 In re Weber, (1974) 11 Cal.3d 703.
- 30 Same, at 724.
- 31 Same.
- 32 Loosely based on the facts of the same.
- 33 In re Harris, (1993) 5 Cal.4th 813, 841.
- 34 Penal Code 1473.5
- See also Evidence Code 1107
- 35 Penal Code 1473.5
- 36 Same. See also Penal Code 667.5(c) PC.
- 37 Same.
- 38 Same.
- 39 Frias v. Superior Court, (1975) 51 Cal.App.3d 919, 924. (“It is well established that inmates of state prisons are entitled to minimum elements of the procedural due process in the imposition of prison discipline. The writ of habeas corpus is an indispensable adjunct to that entitlement.”) (citations omitted)
- 40 Beverly Hills criminal defense and civil rights attorney Neil Shouse is a former Los Angeles County Deputy District Attorney with many years of criminal trial, appeals, and habeas corpus experience on cases ranging from DUIs and drug charges to complex, high profile murders. Mr. Shouse represents clients at a number of locations of the California courts.
- 41 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.”)
- 42 Same. (“Delay in seeking habeas corpus or other collateral relief has been measured from the time a petitioner becomes aware of the grounds on which he seeks relief.”)
- 43 See People v. Duvall, (1995) 9 Cal.4th 464, 474.
- 44 Application of Hillery, (1962) 202 Cal.App.2d 293, 294. 45 People v. Duvall, (1995) 9 Cal.4th 464, 474-75.
- 46 Same, at 475.
- 47 Same, at 476.
- 48 Same, at 478.
- 49 28 United States Code (“U.S.C.”) § 2254.
- 50 Same.
- 51 Same.
- 52 Same.
- 53 See 28 U.S.C. § 2255.
- 54 Same.