Get A Loved One Out of Jail…File A WRIT OF HABEAS CORPUS:

Posted On: July 4, 2007 by

The Habeas PetitionA petition for habeas corpus asks that a court issue a writ, requiring that the prisoner be produced before the court at a particular place, date and time.

In its original use, a petition for habeas corpus was filed to request that the custodian of a prisoner be ordered to bring a prisoner to a county court to testify in a legal matter. This use of a petition for habeas corpus still exists, where a prisoner is in the custody of another county or penal system, and the prisoner's presence is required for a legal proceeding. Typically, a prisoner will be transported to the local jurisdiction by the local Sheriff's department, which will be responsible for guarding the prisoner during court proceedings and returning the prisoner to the other jurisdiction at the conclusion of the proceedings.

However, when most people think of a writ of habeas corpus, they have something more significant in mind - a petition demanding that the custodian of a prisoner explain in court the lawful basis upon which the prisoner has been detained. This type of writ is generally considered to be an "extraordinary remedy", meaning that the prisoner has exhausted all other avenues of relief or appeal, and no other adequate remedy remains. A writ of habeas corpus may seek relief on grounds not available on direct appeal. It is this second meaning which is discussed in this article.

A petition for habeas corpus typically includes the following:
The identity of the prisoner;
The identity of the prisoner's custodian;
The time, date and place of the requested court hearing; and
The issues to be addressed at that time by the court (e.g., the factual and legal basis asserted by a prisoner upon which the court is asked to rule the imprisonment unlawful.).

Prisoners have the right to file petitions for habeas corpus, challenging the legality of their detention. Under United States constitutional law this right may be suspended in times of national emergency.

The Writ of Habeas CorpusOnce a court has been served with a petition for habeas corpus, depending upon the nature of the petition, it might grant a writ, deny the petition, or schedule a hearing on the petition. If the writ is granted, the writ may be served upon the custodian of the prisoner demanding that the prisoner be produced in court as ordered.

The Hearing on the WritIf a writ of habeas corpus is issued, the prisoner will be brought to court at the scheduled date and time. The purpose of a hearing on a writ of habeas corpus is not to determine whether or not a prisoner is innocent, but is instead to determine if the legal basis asserted for the imprisonment is lawful. If the detention is unlawful, the prisoner must be released. Whether or not detention is lawful, if the charge against a prisoner is valid the prisoner may be subjected to trial on that charge. For example, a prisoner might file a petition for habeas corpus alleging detention on the basis of an unlawfully excessive bail, but even if the reviewing court finds the bail excessive and grants relief the prisoner would still have to stand trial on the underlying charge.

Federal Habeas ReliefThe area where some would assert that habeas relief is most important, and others might argue that it has been most abused, is when a federal District Court is asked to review the legality of proceedings which occurred before a state court under the Federal Constitution, with the prisoner alleging that his constitutional rights were violated.

In recent decades there have been a number of rulings by the United States Supreme Court limiting federal habeas relief, and additional federal legislation restricting the circumstances under which a petition for habeas corpus may be entertained by a federal court. Many of these measures have been aimed at death penalty cases, restricting requests for relief by prisoners who have been sentenced to death.

The Law Offices of Wallin & Klarich can help challenge the legality or conditions of imprisonment. If you have any questions or would like further information contact Wallin & Klarich at 1-888-280-6839.