What is a Writ of Habeas Corpus?

by Karren Kenney on Apr. 17, 2020


Summary: Criminal appeal and the Writ of Habeas Corpus

What is a Writ of Habeas Corpus? 

A writ of habeas corpus is a court order that mandates a prisoner currently incarcerated be brought in front of a judge to determine the legality of their imprisonment. Habeas corpus in Latin means to “produce the body,” which essentially means that if a writ of habeas corpus is granted, the court issuing the writ would order the agency holding the prisoner to bring them to court on a specified date to review the lawfulness of their incarceration.

Filing a Habeas Petition

When a prisoner is seeking the court to mandate that a writ of habeas corpus be granted, he or she must first file a petition detailing the reasons for why they believe their incarceration to be unlawful. This process, known as filing a habeas corpus petition, may be filed in either a state or federal court system.This petition is absolutely crucial and is reviewed by a judge to determine whether or not the writ of habeas corpus should be granted based on the information presented before them. If a judge feels that there are not sufficient grounds to deem a writ of habeas corpus necessary, they will reject the petition and the prisoner will remain incarcerated. However, if the petition contains the required facts of the case and supporting evidentiary documents to indicate that the prisoner’s incarceration is potentially unlawful, the judge will sign the petition to issue a writ of habeas corpus to the agency responsible for the prisoner. 

What Happens after the Writ is Granted? 

After the writ of habeas corpus is granted, the judge will set a date for a hearing in which an attorney general representative, from the federal or state level, and the defense counsel come together for a judiciary hearing of the case. During this hearing, the attorney general and defense counsel will discuss the lawfulness of the prisoner’s incarceration with the judge. Either side has the ability to call for an evidentiary hearing, issue subpoenas, and interview witnesses, to ultimately make their case on the lawfulness or unlawfulness of the imprisonment of the defendant. After hearing both sides, the judge will then issue a decision either affirming the lawfulness of the imprisonment or designating that the defendant receive some form of relief. Forms of relief include but are not limited to: the release of the defendant, the ordering of a new trial, or that bail be set/reduced entirely. 

Filing an Appeal

If the defendant is not awarded the freedom from custody or relief which they originally sought out, they may appeal the court’s ruling to a higher judiciary. In California, there is no way to appeal a denied form of relief from the initial Superior Court state ruling. Instead, a completely separate and new habeas petition must be filed with the California Court of Appeals to get a second opinion on the petition. From there, if the defendant is still unhappy with the Court of Appeals ruling, they may file for a petition of review with the California Supreme Court, or file another separate habeas corpus petition with the Supreme Court of the United States. Within the federal court system, a defendant may appeal a denied form of relief or petition up to the circuit courts directly, and potentially appeal up to the Supreme Court after as well. 

Getting Help with a Writ of Habeas Corpus

Filing a habeas corpus petition and dealing with the legal proceedings that follow the writ require an immense amount of experience to have a chance at getting any form of relief. A writ of habeas corpus contains the fate of an incarcerated individual in the balance, and having a seasoned appellate attorney represent you is necessary to work towards getting free from custody. Fortunately, the appellate attorneys at Kenney Legal Defense possess the drive and experience required to represent you in your habeas petition. If you or a loved one is currently incarcerated and believes that there were constitutional issues in securing the original conviction of the defendant, call 1(855) 505-5588 to start the fight to freedom today! 

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