If you believe that you are being illegally confined by state or federal authorities, you possess the right to petition the judicial system for a right of habeas corpus. If a judge issues a writ on your behalf, the prison official responsible for your incarceration will be ordered to bring you before a judge to determine the legality of your imprisonment.
The following procedures allow a prisoner to challenge the legality of an ongoing confinement. Filing a writ of habeas corpus petition is generally classified as a pro se case, meaning that the petitioner appears before a judge without the benefit of legal counsel.
Preparing a Petition
A habeas corpus petition or application must be in writing and signed by the petitioner, an attorney or other personal representative. The petition should include all facts related to the petitioner’s imprisonment. Specifically, the petition should identify the official that has custody of the prisoner and any available information concerning the reason for the confinement.
Filing a Petition
A completed petition may be filed with the court by mail, electronically or delivery by a personal representative. A filing fee must be paid at the time the petition is filed. A petitioner may also submit an affidavit indicating that they lack sufficient funds to pay the filing fee.
Serving a Petition
Once a writ of habeas corpus petition has been filed, it will be served on the official with custody of the prisoner. If the prisoner is being held in a state prison, the state attorney general will also be served. These officials are not required to respond to the petition unless the court requests that they do so.
Consideration of a Petition
After a petition is filed with the court, it is assigned to a judge. If a petition lacks vital information, the petition will be accepted, but the petitioner will be required to submit a corrected petition.
Award or Denial of Writ
Once the merits of the case have been examined, a judge may approve the petition, deny the request or order the incarcerating official to file a response by a specified deadline.
Habeas Corpus Hearing
When a petition for a writ of habeas corpus is approved, the petitioner appears at a hearing before the presiding judge. The federal courts and most state courts will allow the petitioner to make a short argument. Once the facts have been determined, the court will decide whether the imprisonment is legal or the prisoner should be released. The court may also order an investigation or evidentiary hearing.
If the petition for a writ of habeas corpus is denied, the petitioner may appeal the decision. The petitioner will have access to all supporting legal analysis and documentation for the purpose of filing an appeal. If the petition for a writ was approved, state or federal authorities may appeal the decision.
Though the assistance of legal counsel is not constitutionally guaranteed during a habeas corpus proceeding, court rules will require that legal counsel act on behalf of the petitioner during a court ordered investigation or evidentiary hearing. The procedures outlined above make it possible for any prisoner to petition the court for a writ of habeas corpus. These basic procedures help insure that citizens are not confined without probable cause.
Shahin Zamir is a former Assistant District Attorney who knows how the prosecution prepares their case. His law firm, The Law Office of Shahin Zamir, uses this experience to develop a thorough defense for all of their clients.