What Is a Petition for a Writ of Habeas Corpus?

Attorney Aaron Spolin

Spolin Law P.C. is led by award-winning appeals attorney and former prosecutor Aaron Spolin. One of his most recent successful outcomes was on a murder case sent to the state’s highest court.

A petition for a writ of habeas corpus is a request to a court or judge to require a person holding another in detention or custody to bring the person in custody before the court and justify the detention. In fact, “habeas corpus” is Latin for “you have the body.” In New York, if the court determines that the detention is unjustified or illegal, it will order the immediate release of a defendant from custody.

  1. What Is a Petition for a Writ of Habeas Corpus?
  2. How to Challenge a Conviction or Sentence in New York
  3. Grounds for a Writ of Habeas Corpus
  4. How to File a Petition for a Writ of Habeas Corpus in New York
  5. Effective Arguments in Petitions for a Writ of Habeas Corpus

How to Challenge a Conviction or Sentence in New York

New York law provides several ways to challenge a conviction or sentence. One way is to file a direct appeal from the conviction and/or sentence to an intermediate appellate court. This allows another court to review the conviction and sentence for errors. The second court will have a record of what occurred at trial, and the convicted individual submits an appellate brief explaining why a conviction was improper.

An appeal is typically limited to what happened at trial. You will need the record of the trial to prove everything that happened and was said during the trial. In most cases, an issue not raised at trial cannot be included in an appeal. That’s why it’s important to ensure all potential problems that occur during the trial are brought up by your New York criminal defense attorney.

The deadline to file a notice of appeal in New York is 30 days from the date of sentencing. If a notice of appeal is not timely filed, the appellate division will dismiss the appeal absent extraordinary circumstances.

Filing a Motion to Vacate a Judgement

Another method of challenging a conviction is by filing an action under CPL (Criminal Procedure Law) 440, which is a motion to “vacate” or throw out the judgment against the defendant. A CPL 440 motion identifies issues that are not contained in the trial record, including the following:

  • Acts or omissions of the defense lawyer (e.g., failure to investigate)
  • The existence of new evidence
  • Prosecutorial misconduct
  • Juror misconduct

The common denominator is that these issues could not have been raised at trial or on appeal because they happened during the trial or were discovered after the trial.

How is a Petition for a Writ of Habeas Corpus Different from an Appeal or CPL 440 Action?

An appeal is a direct, post-conviction request for an intermediate appellate court to review the record of the trial to determine whether legal mistakes were made that justify reversing the conviction and, ordinarily, sending the case back for retrial or resentencing. As stated above, an intermediate appellate court is limited to reviewing the record for mistakes. An appeal must be filed within 30 days of sentencing.

An action under CPL 440, which is another post-conviction proceeding, is a “collateral” or indirect attack on a judgment based on evidence outside the record. The reasons that a court may vacate a judgment under CPL 440 include:

  • The trial court lacked jurisdiction over the person or the criminal charge.
  • The judgment was procured by duress.
  • The prosecutor or judge knew the evidence against the defendant was false.
  • Evidence was obtained in violation of the defendant’s constitutional rights.
  • The defendant could not participate in the proceedings.
  • Improper and prejudicial conduct occurred that does not appear on the record.
  • The judgment was otherwise obtained in violation of a constitutional right.

A petition for a writ of habeas corpus is another type of post-conviction proceeding, but it addresses issues other than ones that occurred at trial or that are reflected in the record. A petition for a writ of habeas corpus requests the court to issue an order requiring the person keeping a petitioner in custody to appear with the petitioner and justify the detention. It requests that the court release the petitioner from state custody. This petition can be filed at any time.

As described below, the reasons justifying the grant of a writ of habeas corpus are different from those that support an appeal or a CPL 440 motion.

To learn if your case is eligible for an appeal, CPL 440 action, or writ of habeas corpus, contact Spolin Law P.C. at (310) 424-5816.

  1. What Is a Petition for a Writ of Habeas Corpus?
  2. How to Challenge a Conviction or Sentence in New York
  3. Grounds for a Writ of Habeas Corpus
  4. How to File a Petition for a Writ of Habeas Corpus in New York
  5. Effective Arguments in Petitions for a Writ of Habeas Corpus

Grounds for a Writ of Habeas Corpus

Grounds for a writ of habeas corpus in New York exist when a person is unlawfully imprisoned or detained. A writ of habeas corpus is a limited remedy in New York compared to other states and the federal statute authorizing the writ. Most challenges to a conviction are accomplished by appeal or a CPL 440 action.

A petition for a writ can be filed only after a defendant has exhausted all other available avenues for challenging their conviction. In the petition, the person held in custody requests the court for a writ, or order, that requires the person holding the petitioner to appear with the petitioner and justify the detention.

Generally, to obtain habeas corpus relief, a defendant must:

  • Be in custody
  • Be entitled to immediate release if the petition is successful
  • Have no other legal procedure to get the relief requested

The grounds for a petition are not defined by statute but are established under New York law. Because the purpose of the petition is to gain the release of an unlawfully detained person, the reasons that justify the writ are narrowly defined. New York appeals attorney Aaron Spolin discusses these reasons below in the Arguments that Justify the Defendant’s Immediate Release section.

To find out if there are grounds for a writ of habeas corpus in your case, contact Mr. Spolin and his legal team at Spolin Law P.C. at (310) 424-5816.

  1. What Is a Petition for a Writ of Habeas Corpus?
  2. How to Challenge a Conviction or Sentence in New York
  3. Grounds for a Writ of Habeas Corpus
  4. How to File a Petition for a Writ of Habeas Corpus in New York
  5. Effective Arguments in Petitions for a Writ of Habeas Corpus

How to File a Petition for a Writ of Habeas Corpus in New York

The procedure for filing a petition for a writ of habeas corpus is spelled out in the CPLR Article 70. Note that a petition for a writ is a civil proceeding rather than a criminal proceeding even though it pertains to an incarcerated or otherwise detained person.

Where to File a Petition for a Writ of Habeas Corpus in New York

Where to file the petition is the first consideration and can be a complex matter. Generally, the place where the petitioner is imprisoned determines where the petition is filed. A petition may be filed:

  • In the supreme court in the judicial district in which the person is imprisoned
  • In the appellate division of the department in which the person is imprisoned
  • With any justice of the supreme court
  • With a county judge in the county in which the petitioner is imprisoned, or a county judge from an adjoining county, if no judge within the county can or will issue a writ
  • With any justice of the supreme court of the county in which the petitioner’s charge is pending if the petitioner is being held in a New York City detention center.

Contents of the Petition

The petition must include the following:

  • The name of the petitioner
  • The name of the petitioner’s prison and of the warden or official imprisoning the petitioner
  • A copy of the mandate (a written order of the court directing the warden to enforce the sentence against the petitioner) by which the petitioner is detained or an explanation of why the petitioner could not obtain a copy of the mandate
  • The stated reason that the petitioner is imprisoned
  • An explanation of why the imprisonment is illegal
  • The result of any appeal from the trial court’s judgment or a statement that the petitioner did not make an appeal
  • A statement that the petition does not contain any claim that was already decided against the petitioner in a previous petition
  • The name of any court or judge to whom the defendant previously petitioned for a writ of habeas corpus, including the date and result
  • A statement of any new facts in that were not included in an earlier petition
  • Whether there has been a previous petition for a writ of habeas corpus filed at any time
  • A statement that a court or judge of the United States does not have exclusive jurisdiction to order the petitioner’s release
  • The notarized signature of the petitioner.

As stated above, the petition must contain a statement explaining why the detention is illegal. This is the most important part of the petition because it tells the court why the petitioner should be released. The petitioner needs to put every fact and all the case law supporting their case in the petition. If it appears to the court from the petition that the petitioner is not being unlawfully detained, the court will simply deny the petition.

What Happens If the Petition for the Writ of Habeas Corpus Has Merit?

If the court finds from the petition that the petitioner’s claim has merit, it will issue the writ of habeas corpus to the petitioner, who must serve it upon (give it to) the entity that has custody of them – usually the warden of the institution in which they are being held.

The warden must then respond to the writ by affidavit, which is known as the “return” of the writ, within the time set out in the writ. The affidavit must fully and explicitly state whether the person detained is or has been in the custody of the person to whom the writ is directed and the authority for the detention.

A copy of any mandate that justifies the detention of the petitioner must be attached to the affidavit and the original mandate produced at the hearing. As required by the writ, the warden or other person detaining the petitioner must produce the person detained at the time and place specified in the writ.

Writ of Habeas Corpus Hearing

The court holds a hearing, allowing arguments for and against the detention of the petitioner. The proceedings are summary proceedings, meaning that they are expedited and make little provision for discovery, allowing the court to proceed “as justice requires.”

The only point at issue is whether the petitioner’s detention is lawful. If the court determines that it is, the petitioner will be returned to the detention facility. If it determines that it is not, the defendant will be released. The court may also release a person denied bail or reduce the amount of bail set.

  1. What Is a Petition for a Writ of Habeas Corpus?
  2. How to Challenge a Conviction or Sentence in New York
  3. Grounds for a Writ of Habeas Corpus
  4. How to File a Petition for a Writ of Habeas Corpus in New York
  5. Effective Arguments in Petitions for a Writ of Habeas Corpus

Effective Arguments in Petitions for a Writ of Habeas Corpus

The skilled habeas corpus lawyers at Spolin Law P.C. discuss effective arguments for petitions

The skilled habeas corpus lawyers at Spolin Law P.C. discuss effective arguments for petitions. Call Spolin Law P.C. to learn how we can fight for your rights: (310) 424-5816.

A writ of habeas corpus is an extraordinary remedy for a defendant, but several arguments can be made that would justify issuance of a writ and immediate release of the defendant. These include:

Failure to Extradite

If the state failed to extradite the prisoner (send them to another state for prosecution) within 90 days of their detention, then the imprisonment in New York may be improper.

The Indictment Was Faulty

If the indictment (the instrument charging a defendant with a crime) was faulty or outside the jurisdiction of the court and if the issue is “very important,” that would invalidate the conviction, such as when:

  • An indictment or information was not filed at all.
  • The indictment failed to state facts to meet every necessary element of the crime with which the defendant was charged, and the court was entirely stripped of jurisdiction as a result.
  • The court convicted the defendant of a crime not included in the indictment.

Improper Bail

If bail was improperly denied or was set too high, then current imprisonment may be illegal.

Incarceration Without Arraignment

A person arrested without a warrant cannot be detained for longer than twenty-four hours without an arraignment (the proceeding in which a defendant is called before the court to answer a charge).

Lack of a Speedy Trial

A defendant has a right to a speedy trial under New York law. If this is violated and the defendant does not waive that right, then the incarceration may be improper.

The Sentence Has Already Been Served

If the defendant has already served their sentence and is still being detained, incarceration is illegal.

Unconstitutional Statute

If the statute under which a defendant was prosecuted is unconstitutional, then incarceration would be improper. This argument requires review of state and federal laws and rights of the defendant to determine if a New York statute is unconstitutional.

Voided Law

Laws are constantly changing. If the law used to convict the defendant has been declared void or repealed, incarceration is no longer valid.

Illegal Parole Revocation Hearing

If a defendant’s preliminary or final parole revocation hearing was not conducted in accordance with the law, the incarceration may be invalid. The exception would be if parole was revoked because the parolee committed another crime.

Unconstitutional Prison Conditions

If the petitioner’s prison conditions violate their constitutional rights, then release of the prisoner may be the appropriate remedy.

There are many effective arguments that can be made in a petition for a writ of habeas corpus. To find out what might apply to your case, contact the criminal appeals law firm of Spolin Law P.C. at (310) 424-5816.

Other Issues Involving Petitions for a Writ of Habeas Corpus

What If the Petitioner Has Multiple Convictions?

The granting of a petition for habeas relief must ordinarily result in the release of the defendant. This means that if the defendant is serving multiple sentences, they cannot file for habeas relief from only one of the convictions since, even if the petition is granted, the person will still be incarcerated for the other offenses.

When a Prisoner May Not Be Released Upon Successful Petition

There are a few exceptions to the rule that the result of a successful petition for habeas corpus be release of the prisoner. For example, a defendant may petition for a writ of habeas corpus if there has been an “unreasonable delay” in the disposition of a CPL 440 motion or if a defendant’s appeal has been pending for an unusually long time, but only if waiting for the appeal of a conviction will cause the defendant to face a longer prison term.

Can a Writ of Habeas Corpus Be Used When the Petitioner Is Not Guilty By Reason of Mental Illness?

Yes, in some cases a writ of habeas corpus can be used if a petitioner is found not guilty by reason of mental illness. If they are placed in an institution for the criminally insane, they may pursue a writ of habeas corpus if the Commissioner of the Department of Mental Health fails to comply with the time, notice, and hearing requirements for a statutory retention order.

While the defendant might be released because of this failure, the court may also order that the defendant be transferred to a non-secure facility. Likewise, a petitioner may obtain a writ of habeas corpus to immediately transfer them to a non-secure facility when the order of confinement at the facility for the criminally insane has expired and no application for the order’s extension had been made.

A Skilled New York Criminal Appeals Attorney Can Help You

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The criminal appeals lawyers at Spolin Law P.C. use New York laws to fight aggressively to get clients released from incarceration. Call us today at (310) 424-5816.

Habeas corpus is a powerful but extraordinary writ. It can mean release for a prisoner. Writing a successful Petition for a Writ of Habeas Corpus requires care, skill, and experience. Spolin Law P.C. forcefully fights for its clients by scrutinizing all the facts available and pouring over relevant legal precedent to convince a judge or court that the petitioner is being held unlawfully and that release is the proper remedy.

New York has strictly limited the reasons that a person may obtain a writ of habeas corpus, making success on a petition more difficult than success on appeal or a CPL 440 motion to vacate judgment. For a petitioner, having an inspired, dedicated lawyer is a necessity to persuade the court of the illegality of the detention and the necessity of releasing them. It can mean the difference between further incarceration and freedom.

To learn more about whether a petition for habeas corpus is an option in your case, contact award-winning New York criminal appeals lawyer Aaron Spolin at the law firm of Spolin Law P.C. at (310) 424-5816.