Writ Of Habeas Corpus
Under Federal Law, pursuant to 28 U.S.C. § 2441, a Writ of Habeas Corpus is a method for one in state or federal custody to challenge his or her custody as unlawful and in violation of the United States Constitution. Although the writ has been largely replaced for federal prisoners by a petition for post-conviction relief under 28 U.S.C. § 2255, the writ is still largely available. These petitions are civil actions and name the warden or whoever has authority over one’s unlawful custody as the respondent. These writs must be filed in the federal district court having territorial jurisdiction over the prison or agency having custody of the petitioner. One must be in custody to file this writ. The term “custody” is to be liberally construed as it includes those who are incarcerated, as well as those on probation, parole, supervised release or bail. This writ is generally used as a method of last resort for federal and state prisoners to challenge their arrest, conviction and/or detention. Specifically, violations of one’s Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights. This writ has also been applied when the constitutional right asserted was initially recognized by the Supreme Court if the right was newly recognized and made retroactive in cases on collateral review. However, there are limitations. For example, one generally cannot challenge a search and seizure issue where there was a “full and fair opportunity” to litigate such a claim in earlier proceedings. However, if one was denied a “full and fair opportunity” on such an issue, one may complain about it in a habeas petition if the court: (1) never considered whether factual arguments were right or wrong (2) never considered why factual arguments were right or wrong.
Federal habeas corpus under 28 U.S.C. § 2254 is a procedure allowing a person convicted in state court and currently in custody to challenge that custody on the grounds that the sentence or underlying conviction violated the federal Constitution. Habeas corpus is subject to a multitude of restrictive procedural rules and requirements that can easily lead to denial of relief even in cases where the conviction or sentence are indisputably unconstitutional.
For example, to name just a few restrictions, the claims raised for federal habeas corpus relief must be based in the federal Constitution, must have been properly raised first in state court all the way through the state supreme court, and must not have been waived, forfeited, or procedurally defaulted in the state court proceedings. In addition, the petitioner must be in “custody” as a result of a state conviction at the time the habeas corpus petition is filed, and the petition must be filed in the proper federal court.
Furthermore, and perhaps the most important requirement, with very few exceptions, is that the petition must be filed in the federal district court within one year of the state conviction becoming “final.” This means that, if a direct appeal was pursued and issues were appealed through a decision to the state supreme court, the one-year period for filing a federal habeas petition begins to run 90 days after the state supreme court’s decision. Although the one-year period stops running temporarily if you file a motion
for collateral relief in state court before the deadline expires, such requests generally do not start a new one-year period. Also, the deadline for filing a federal habeas petition is “tolled” (i.e., temporarily halted) only so long as the collateral motion remains pending in the state court. Therefore, once any such motion is resolved, the deadline begins running again from the point at which the state motion is finalized.
Attorney Paul Petruzzi has 23 years of experience litigating habeas corpus petitions. It is important for one to hire an experienced attorney when filing this type of petition. Call today for a free consultation.