The Habeas Corpus Issue

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The Habeas Corpus Issue

The author of the following Writ of Habeas Corpus analysis will have to identify himself or herself as this file came attached to an Email message I downloaded to my desktop, but the file itself doesn't have the author's name.

This is a reasonably good preliminary study. It is an important matter as the writ of habeas corpus has long been recognized as the great writ of liberty. However, use of the writ of habeas corpus is a forgotten art, and both State and Federal judges run around Robin Hood's barn to avoid issuing it.

The Federal habeas corpus is secured at Article I § 9, clause 2 of the U.S. Constitution: "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."

The Oklahoma Constitution secures habeas corpus at Article II § 10: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State."

Most State constitutions prevent State government from suspending the habeas corpus. Yet State and Federal judges and justices for all practical purposes unilaterally suspend it.

In my opinion, failure of judges and justices to issue the habeas is usually based on procedural and form defects. Consequently, it is in the best interest of the patriot community to compile a body of research on the Writ of Habeas Corpus and other common law writs. If others will forward research on this subject as they've been doing on others, we can put together a pretty good foundation in reasonably short order The following analysis provides a good launch point. Dan Meador


Habeas Corpus is a legal device to give summary relief against illegal restraint of personal rights, as well as, a high prerogative common-law writ esteemed as the best and only sufficient safeguard of personal freedom. It has for its object the speedy release by judicial decree, of a person who is illegally restrained of his rights or freedom, or is illegally detained from the control of those entitled to his custody.

The habeas corpus includes a "return" and a "writ of inquiry", which together constitute a "complaint." The Writ of Inquiry is directed to the person in whose custody the prisoner is detained, requiring the custodian to bring the prisoner before the judge or court, that appropriate judgement may be rendered upon judicial inquiry into the alleged unlawful restraint.

To initiate the proceedings, the man or woman in custody, or someone on his behalf, must prepare a petition for a Writ of Habeas Corpus. Keep in mind that preparing the petition does not entitle the prisoner to a discharge. The petition must state:

1. The name or description of the custodian,

2. The cause or pretense for the imprisonment (if known) and,

3. The ground(s) upon which it is claimed to be illegal.

The petition will be denied if three requirements are not met:

1. Legal requirements as to form,

2. Must be presented either to the custodian of the petitioner or to the proper court
(not via the clerk of court, but directly to the judge), and

3. Must state the facts sufficient to authorize release of the prisoner.

Documentary evidence may be introduced (with the Writ of Habeas Corpus) orally, by deposition, or by affidavit. See House resolution 4232, Seventy-ninth Congress.

Most persons who use the Habeas Corpus attempt to "deliver" the "writ" to the clerk of the court wherein it behaves as a "writ." Judges are not compelled to respond to a "writ". Give the "writ" to the jailer or serve it directly to the judge. The compelling part of the habeas corpus action is the "complaint," which consists of the "writ" and "return." The return is prepared by the custodian of the applicant (usually the chief jailer) and requires these answers:

1. That he indeed does have custody of the applicant, and

2. The true cause of the detention.

The return must be completed within three days and the "complaint" (writ PLUS the return) must be acted upon "forthwith" by the judge (check with your state’s Civil Procedures).

The writ is directed to the custodian and commands him to have the body of the prisoner before the court or judge (at a specified time), and to bring with him the writ itself with a return thereon showing what he has been doing with or particulars as to the detaining of the prisoner and if so, by what authority. If the answer does not state a lawful authority for the confinement of the prisoner, his discharge will be ordered forth with.

If the petition is not acted upon timely then the recourse is a petition for "Writ of Mandamus" to the next higher court. If the petition is denied, it may be appealed to the next higher court, even to the Supreme Court of the United States.

Example of Being Illegally Held: Speeding, driving without a license, wrong plates or no plates, no registration, no tags, etc., have been held to be "non-arrestable" offenses (Cal. V. Farley, 98 Cal. Rep. 89, 20 CA 3d 1032) as not constituting an immediate threat to the public safety, health or other of the forms of the states broad image.


1. Made by person detained or someone acting on behalf of person detained.

2. Writ is served on the person having custody of or restraining the person who is the subject matter of the petition.

2. The person upon whom the writ has been served must make a written return, stating:

A. Whether or not he has the party in his custody or under his power or restraint, and

B. The reasons thereof.

3. The return must be verified by the oath of the person making the oath unless he is a sworn public officer.

5. The "return" PLUS the "writ" constitutes the "complaint."

6. The petitioner may file an answer

A. Denying facts stated in the return, and

B. May file an answer containing affirmative defenses.

7. The State has the burden of proof of the allegations of the return.

7. The judge must proceed at once to hear such proof and disposes of the case.


The following analysis is of the Federal level Habeas Corpus Rules. Most State rules are for the most part carbon copies of the Federal Rules, so act accordingly:

U.S. Code Title 28, Sec. 2242

Application for Writ of Habeas Corpus shall:

A. Be in writing

1. Signed, and
2. Verified, by
a. The person whose relief it is intended, or
b. By someone acting in his behalf, and
B. Allege the facts concerning the applicants
1. Commitment or detention,
2. The name of the person who has custody over him,
3. And by virtue of what
a. Claim, or
b. Authority.
It may be
A. Amended, or
B. Supplemented.
If addressed to
A. The Supreme Court, or
B. A justice thereof, or
C. A circuit judge
It shall state the reasons for not making application to the district court of the district in which the applicant is held.

U.S. Code Title 28, Sec. 2243

A court, justice or judge entertaining an application for a writ of habeas corpus shall FORTHWITH
1. Award the writ, or
2. Issue an order directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or person
detained is not entitled thereto,
The writ, or order to show cause,
1. Shall be directed to the person having custody of the person detained,
2. Shall be returned within three days - unless for good cause additional time, not
exceeding twenty days, is allowed.
The person to whom the writ or order is directed
1. Shall make a return certifying the true cause of the detention.
When the writ, or order, is returned -
1. A day shall be set for hearing, not more than five days after the return, unless for
For good cause, additional time is allowed.
Unless -
1. The application for the writ and
2. The return present ONLY issues of law.
The person to whom the writ is directed shall be required to produce at the hearing the body
of the person detained.
The applicant, or the person detained, may (under oath)
1. Deny any of the facts set forth in the return or
2. Allege any other material facts.
The return and all suggestions made against it may be amended, by leave of court,
1. Before, or after being filed.
The court shall summarily
1. Hear, and
2. Determine the facts, and
3. Dispose of the matter as
a. Law, and
b. Justice require.

U.S. Code Title 28, Sec. 2249

On application for a writ of habeas corpus to inquire into the detention of any person pursuant to a judgment or a court of the United States, the respondent shall promptly file with the court:
1. Certified copies of the indictment,
2. Plea of petitioner, and
3. The judgment, or
4. Such of them as may be material to the questions raised,
a. If the petitioner fails to attach them to his petition, and
b. Same shall be attached to the return of the writ, or
c. To the answer to the order to show cause.


Here are a few of the concepts and ideas as to whether or not the "prisoner" is entitled to a rehearing, new trial and/or writ of habeas corpus:

1. Your State’s Rules of Civil Procedure - Rule 1 generally states that the Civil Rules govern all procedure in district and circuit courts except as states in another Rule, near the end of the Rules, that the Rules of Civil Procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided that any rules so applied does not conflict with any statutorial or constitutional requirement.

2. In your State’s Rules of Criminal Procedure, it will state that the rules of Civil Procedure relating to appeals govern criminal appeals to the appellate court, except as otherwise provided.

3. Even though your State’s Civil Rules and Criminal Rules both provide a 10 day limitation to file motions—I PROPOSE THE FOLLOWING:

. A. Under your State’s Criminal Rule in regard to TIME, it will probably
state that the court may not extend the time for taking any action under
the rules applying to a new trial, arrest of judgment and appeal, unless
otherwise provided in these rules. BUT, in the appeal section of the Court
of Appeals on its own motion, or FOR EXTRAORDINARY CAUSE

B. The appeals court can suspend the 10 day notice of appeal requirement

and entertain the motion/writ, if they deny the motion you can:

1. File a motion/writ of habeas corpus with the district court or

whatever it is called, and because the statute of limitations has
Run its course, the court will deny it­now you can appeal their
"denial" to the appellate court.

4. File a federal level writ of habeas corpus, however, the "Exhaustion Doctrine" must be satisfied. See Post Conviction Remedies, The Lawyers Cooperative Publishing Co., Rochester, New York 14694, published 1981. See especially the chapters on Exhaustion Doctrine and Effect of Procedural Default.


1. Does petitioner have remedy in federal habeas corpus?

2. Does petitioner fall within the parameters for review of petition for habeas corpus? Weygandt v. Ducharne, 774 F2d 1491, 1992 (9th Cir 1985); Blair v. McCarthy, 871 F2d 95; Wayne v. Rains, 690 F2d 685, 687 (9th Cir. 1982), Cert. Denied, 464 914, 104 Sct 275, 78 L.Ed. 2d 256 (1983).

3. What were the state law, U.S. Constitutional or procedural violations? (Petitioner challenge under 28 USC 2254 to the validity of a guilty plea on the ground that the petitioner received ineffective assistance of counsel in violation of the Sixth Amendment.)

4. At the time petition was tried, was there cause of not raising a claim based upon the argument------(see Penny v. Lynaugh, 492 US___ 109 S.Ct. 2934, 106 L.Ed. 2d 256 (1984).\

5. And if not, would the application of a procedural bar to the claim result in a "fundamental miscarriage of justice"? (See Smith v. Murray, 477 US 527, 537-538, 106 SCt. 2661, 2667-2778, 91 L.Ed. 2d 434 (1986), 493 US____, 110 SCt. 231, 107 L.Ed. 2d 182 (1989).

6. Did trial court’s failure to ensure that defendant understood that his plea of guilty to murder.

7. Was defendant denied effective assistance of counsel when trial counsel advised him to in effect plead guilty to a lesser charge in order to receive a smaller sentence than if he were to go to trial based upon the full charge and the full consequences...based on circumstantial evidence and not support the full charge.

8. Was defendant prejudiced by trial counsel’s ineffectiveness in connection with proceeding in which defendant in essence plead guilty, but stated to trial judge that he didn’t do it; had he been advised that evidence was merely circumstantial, he would not have plead guilty.

9. Was defendant advised of his right to contest facts and right to challenge inferences to be drawn from those facts, application of facts to relevant law and right to finding of guilt beyond a reasonable doubt.

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