Petitions for a Writ of Habeas Corpus

By Aaron Spolin, Princeton University B.A., U.C. Berkeley J.D. | Updated May 16, 2024

The Writ of Habeas Corpus Process

Experienced appellate attorneys have achieved successful outcomes, including murder cases sent to the state's highest court.

Here are the steps that experienced attorneys take in Habeas Corpus cases:

Find Errors Where Clients' Rights Were Violated - When criminal defendant rights are violated, there may be grounds to challenge conviction or reduce sentence. Experienced appeals attorneys are aware of hundreds of arguments that can support a Writ of Habeas Corpus resulting in overturned conviction or reduced sentence.
Argue U.S. Constitutional Law and California Law - Both California law and U.S. Constitutional law can provide basis for challenging criminal conviction. To increase client success chances, all issues with basis in state or federal law are raised. Raising federal issues in California writs increases likelihood of successful outcome in federal court.
Describe Innocence of Client, When Applicable - According to academic research, approximately "2,000 people are wrongfully convicted every year" in the United States. A Writ of Habeas Corpus is one primary way to obtain freedom based on actual innocence. These writs can include witness statements, affidavits, and external evidence.
Fight for Client's Release from Prison - Experienced appellate attorneys have one goal when filing a Writ of Habeas Corpus: obtain client release from prison as quickly as possible. A court hearing such a writ has authority to schedule new trial, modify sentence, and order immediate release.

You may be eligible for release, sentence modification, or new trial. To learn whether a Writ of Habeas Corpus may help, contact SPCRC's Recommended California Lawyers for a consultation.

What is a Writ of Habeas Corpus?

If a law enforcement agency detains you, then you may have the right to challenge the legal basis for your incarceration, the duration of your imprisonment, and/or the conditions of your imprisonment, and ask a court for relief from unlawful confinement. The petition to the court to review and alter your circumstances is known as a Writ of Habeas Corpus.

A Writ of Habeas Corpus literally translates to "bring a body before the court." A writ is an order from a higher court to a lower court or government agency or official. When you file a petition for a Writ of Habeas Corpus, you are asking the court to order the government agency to appear and bring you before the court.

If a court approves your petition for a Writ of Habeas Corpus, the law enforcement agency may be required to prove that your detention is valid and lawful, and that the conditions of the imprisonment are in accordance with the law.

Through a Writ of Habeas Corpus, you may ask the court to:

Release you from the law enforcement agency's custody
Have your term of incarceration reduced
Have your rights declared and respected
Order illegal conditions to be stopped and/or corrected

What is a Federal Writ of Habeas Corpus?

A Federal Writ of Habeas Corpus is the final avenue for review of issues that were denied in California state courts. A Federal Writ must allege that a federal right was violated. Due to the 5th, 6th, and 14th Amendments of the Constitution, most claims concern federal constitutional rights that were violated. For example, since there is a federal right to effective assistance of counsel, a claim for ineffective assistance of counsel may be raised in a Federal Writ of Habeas Corpus.

On state convictions, the federal court will usually reject a Federal Writ of Habeas Corpus if the issues raised were not first filed and adjudicated in the California State Courts in a timely and thorough manner. The federal court will also usually reject a Writ of Habeas Corpus if the California Court denied the appeal or writ because of a procedural issue, such as if the defendant waited for too long to file the California Writ of Habeas Corpus.

A Writ of Habeas Corpus is Not a Criminal Appeal

It is important to distinguish between the criminal appeal process and the Writs of Habeas Corpus. A Writ of Habeas Corpus cannot be used to appeal a finding of guilt in a criminal case. This must be done through the criminal court's appeal process. If you are unsure of your right to appeal or the process, contact SPCRC's Recommended California Lawyers immediately.

If you cannot appeal or your appeal was denied, you are welcome to contact us to discuss your available options.

Is There a Deadline to File your Writ of Habeas Corpus?

California Writ of Habeas Corpus Deadline

There are no "fixed statutory deadlines to determine the timeliness of a state prisoner's petition for habeas corpus. Instead, California directs petitioners to file known claims as promptly as the circumstances allow." Walker v. Martin, 131 S. Ct. 1120, 1142 (2011).

In the Petition, it is imperative to explain when the petitioner first learned of the claims that are being raised in the Writ of Habeas Corpus. The petitioner "has the burden of establishing the absence of 'substantial delay.'" Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim." In re Robbins, (1998) 18 Cal.4th 770, 780.

If there has been a "substantial delay" in filing the Petition, the petitioner must explain "good cause" for the delay. Generally, an ongoing investigation into other claims that may be included in the Writ of Habeas Corpus is considered to be "good cause." Willful ignorance is usually not considered to be "good cause." See In re Douglas, (Ct. App. 2011) 200 Cal. App. 4th 236.

If there was a "substantial delay" in filing the Writ of Habeas Corpus, and the petitioner does not have "good cause" for the delay, the Court may still consider the Writ of Habeas Corpus, in four limited circumstances:

There was an error of "constitutional magnitude," and without this error, a reasonable judge/jury would not have convicted the petitioner
The petitioner is actually innocent
The death penalty was imposed, and absent the error a reasonable judge/jury would not have imposed the death penalty
The conviction was obtained using an invalid statute

For more information about California writ deadlines, view the Deadlines on California Writs of Habeas Corpus page.

Federal Writ of Habeas Corpus Deadline

The Federal Writ of Habeas Corpus has numerous requirements and stringent deadlines that go far beyond the California writ requirements. Some of these requirements include an absolute one-year deadline for the filing of all writs. Additionally, a federal writ can generally only be filed once the petitioner has "exhausted all state remedies." This means that the inmate seeking relief must have used every available means of relief at his or her disposal in the state court system, including appealing his conviction to the California Court of Appeals in a timely manner, and — if denied in the Court of Appeals — seeking a timely petition for "writ of certiorari" in the California Supreme Court. Because of the complexity of these requirements, seeking the aid of an appellate attorney with federal writ experience is highly recommended.

Arguments that Can Overturn Convictions

A Writ of Habeas Corpus usually addresses claims of ineffective assistance of counsel, prosecutorial misconduct, newly discovered evidence, jury misconduct, and claims of actual innocence.

Ineffective Assistance of Counsel

Ineffective assistance of counsel refers to when a trial attorney's representation was so far below the professional standards lawyers must adhere to that what he or she did was "unreasonable," and resulted in an unfavorable outcome. This includes acts not taken in the trial, or trial preparation, such as:

The attorney did not fully investigate the facts of the case
The attorney did not call certain witnesses to testify
The attorney did not hire an expert to testify
The attorney did not present evidence of innocence
The attorney provided incorrect legal advice, which was relied on by the client
The attorney did not file a potentially valid motion to suppress evidence

Prosecutorial Misconduct

These actions include, but are not limited to, submitting false evidence, or withholding evidence. The evidence must be "substantially material or probative on the issue of guilt." PC §§ 1473(b)(1) and (2).

Newly Discovered Evidence

The evidence must be of the nature that it likely would have changed the outcome of the trial. The evidence must be presented without substantial delay from the time that the evidence was reasonably discoverable.

Actual Innocence

Claims of actual innocence may be submitted in a Writ of Habeas Corpus.

Jury Misconduct

A claim for jury misconduct must be based on a "reasonable belief that jury misconduct had occurred," and cannot be "speculative, conclusory, vague, or unsupported." People v. Cook (2015) 236 Cal.App.4th 341, 345-346. A claim for jury misconduct may be premised on:

A jury member conducted his/her own investigation of the facts at issue, going beyond the evidence admitted at trial
The jury was improperly biased against the defendant
The jury deliberately considered evidence that it should not have considered
The jury discussed the case with non-jurors
The jury discussed the fact that a defendant refused to testify. The defendant has a constitutional right to not offer testimony. When deliberating, the jury cannot even discuss a defendant's lack of testimony. See CALCRIM 355

Judicial Misconduct

Judicial Misconduct refers to an error by the Court, which is prejudicial to the defendant. An example of judicial misconduct is if the Court holds hearings without the defendant's attorney present. See Ryan v. Commission on Judicial Performance, (1988) 754 P.2d 724 ("conducting judicial proceedings in the absence of counsel constitutes judicial misconduct").

Legal Incompetence

You cannot be tried for a crime if you are deemed incompetent at the time of your case. This incompetency can be due to a mental health issue, a disability, or a physical injury. If you were incompetent at the time, yet the court pursued a trial anyway, you should speak to an attorney.

Unconstitutional Law

This is not common, but it does happen. You and your attorney may be able to show that the law that allowed for your conviction and imprisonment is unconstitutional in some way. One reason may be that the law is overly vague, or that it is discriminatory.

Evidence of Battered Woman Syndrome

If you suffered from the psychological effects of domestic violence by a partner, reach out to an attorney from our firm right away. In certain circumstances, you can file a petition for a Writ of Habeas Corpus based on battered woman's syndrome. To file a petition under California law, you must have been convicted of a violent felony before August 29, 1996, and evidence of the domestic abuse must not have been admitted at the original trial.

Unlawful Prison Conditions

Poor prison conditions are a well-known issue throughout California and the United States. If you are being physically, sexually, or emotionally abused during your incarceration, this may be a ground for filing a Writ of Habeas Corpus petition. Also, if you are suffering due to neglect, including a lack of food or water, a lack of clothing, or lack of access to medical care, this also provides grounds for a petition.

The History of the Writ of Habeas Corpus

In some nations throughout the world, residents and visitors have less freedom. Many countries have the right to detain and jail citizens and non-citizens without charging them with a crime. The individuals who have been incarcerated have no way or limited means of seeking their release or arguing that their treatment is unfair or illegal. When the U.S. formed and the Constitution was drafted, the Founding Fathers specifically wanted to avoid this type of tyranny. That is why the U.S. Constitution specifically gives individuals detained in or by America the privilege of the Writ of Habeas Corpus. Article 1, Section 9, Clause 2 of the United States Constitution is known as the Suspension Clause, and it states:

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

It is important to note, however, that the Founding Fathers did not create the concept of the Writ of Habeas Corpus. It is a concept that pre-dates the Magna Carta, which originated in 1215. Courts in England began reviewing petitions based on the Writ of Habeas Corpus in the 1600s.

Since the founding of the U.S., the Writ of Habeas Corpus has gone through many changes. President Abraham Lincoln suspended the privilege of the Writ of Habeas Corpus during the Civil War. However, following the Civil War, the writ went through a period of expansion, and the federal government was allowed to grant petitions to state prisoners.

Following the more recent War on Terrorism, the right to petition for a Writ of Habeas Corpus was substantially limited by judicial decisions and by the Antiterrorism and Effective Death Penalty Act (AEDPA), the Detainee Treatment Act of 2005 (DTA), and the Military Commissions Act of 2006 (MCA). These laws sought to limit Guantanamo Bay detainees' access to the federal courts. The Supreme Court found that alien detainees, who were designated as enemy combatants and held outside of the U.S., had the constitutional right to Writs of Habeas corpus.

The Process of Filing a Writ of Habeas Corpus

Drafting and filing a comprehensive petition for a Writ of Habeas Corpus can be difficult, and it may be beneficial to obtain assistance from an experienced attorney. To begin, your lawyer will review your circumstances to ensure you have met the requirements to file a Habeas Corpus petition. Exhausting other remedies is absolutely essential if you want a chance at having your petition granted.

Your attorney will discuss with you whether to file a petition for a Writ of Habeas Corpus at the state or federal levels. This often depends on whether your criminal case took place at the state or federal level, and the grounds for your petition.

Next, your attorney will determine the court that has jurisdiction over your petition for a Writ of Habeas Corpus. Filing your petition in the proper court is absolutely necessary. Otherwise, it will be dismissed. In California, the county in which you file your petition may differ depending on the grounds of the petition.

If you wish to utilize California law, then your petition is filed with the California Superior Court. If your petition is rejected, then your case moves to the California Court of Appeal, and possibly the California Supreme Court. You will file a Habeas Corpus petition in California if you are arguing that your conviction violated a state law, or that a California law is unconstitutional.

When your state or federal criminal appeals are exhausted, including a state-level petition for a Writ of Habeas Corpus, then your attorney will draft a petition for a Writ of Habeas Corpus and file it with the proper U.S. District Court. This court may approve or deny the petition. If it is denied, then you must ask the U.S. District Court for a Certificate of Appealability. You do not automatically have the right to appeal to the next higher federal court — the U.S. Circuit Court of Appeals.

If your petitions are denied at both the District Court and Circuit Court of Appeals, you may have grounds to file a Petition for Certiorari with the Supreme Court. This petition is to ask the Supreme Court to review the lower court's decision.

A Writ of Habeas Corpus is usually filed by submitting a Petition, a Memorandum of Points and Authorities, a Declaration from the defendant, and other evidence which supports the Writ of Habeas Corpus. The Memorandum of Points of Authorities is a legal memorandum, which contains the legal arguments of the defendant.

After the Writ of Habeas Corpus is filed, the Court has a few options. The Court may deny the Writ, the Court may request that the government submit a response to the Writ, or the Court may grant the Writ.

If the Court grants the Writ, then the government will be permitted to submit a response to the Writ, and the defendant will be permitted to submit a reply to the government's papers. The court may hold a hearing, or a series of hearings, if the Court determines that this is necessary. If the Court ultimately agrees with the defendant, then the Court may grant a new trial, find the defendant not guilty, or award any other relief that was requested in the Writ of Habeas Corpus (this depends on the facts of each case).

What Happens When a Writ of Habeas Corpus is Granted?

If a court approves your petition for a Writ of Habeas Corpus, then the writ — which is a judicial order — affects the law enforcement agency in control of your confinement. The agency that is holding you is required to appear in court and bring you before the court for a review of your confinement or the conditions of your confinement.

The court will set a date for your hearing. At that hearing, both you and the other party will have the opportunity to present your arguments and evidence. This is the time in which your attorney will present evidence — including witness testimony — to prove that your confinement, the duration of your confinement, or the conditions of your imprisonment are unlawful. A prosecutor representing the state or federal government will have the opportunity to rebut your lawyer's evidence, and to argue that your incarceration or its conditions are lawful.

When a petition for a Writ of Habeas Corpus is granted, it means you are granted another day in court. You are given one last chance to prove that you are being subjected to unconstitutional conditions while incarcerated. It's important to remember, however, that having your petition approved does not mean you will automatically be released from prison, or that the conditions will change.

How Many Writs of Habeas Corpus May be Filed?

The general rule is that only one Writ of Habeas Corpus may be filed. "Successive petitions" are usually denied. See In re Clark (1993) 5 Cal.4th 750, 774. If a defendant has previously filed a Writ of Habeas Corpus, the defendant must explain and justify why a second Writ of Habeas Corpus was filed. In a second Writ of Habeas Corpus, it is necessary to explain why the arguments raised were not raised in the first Writ of Habeas Corpus.

How a Top Los Angeles Writ of Habeas Corpus Lawyer Can Help

Experienced appellate attorneys have years of experience filing Writs of Habeas Corpus.

Submitting a successful Writ of Habeas Corpus requires skillful representation. Qualified appellate counsel with experience as former prosecutors and award-winning criminal appeals lawyers are highly experienced and have worked on numerous Habeas Corpus petitions.

An excellent writ of habeas attorney in Los Angeles can make a difference. The more thoroughly the attorney reviews the record, and considers the facts and issues that were both raised and not raised at trial or sentencing, the more elements the attorney can find to support the Writ of Habeas Corpus. Top appellate attorneys work hard to find as many strong arguments as possible to support a Writ of Habeas Corpus petition.

The success rate of experienced appellate attorneys is based on their strong desire to win each case they handle. Contact SPCRC's Recommended California Lawyers to learn how they can handle your California or Federal Writ of Habeas Corpus.