Habeas Corpus Procedure

In some ways, a petition for writ of habeas corupus is like an appeal—in others, it isn't.

A writ of habeas corpus is a court order mandating a change in the term or conditions of a person’s confinement. State and federal courts issue a writ if they conclude that imprisonment violates rights secured by the state or federal constitution or law. Typically, a petition asking a court to grant a habeas writ constitutes a “collateral attack” (as opposed to a “direct attack”) on an existing conviction. Petitions are considered collateral attacks when they seek to challenge the constitutionality of confinement after the opportunity to appeal a conviction has ended.

Preconviction Petitions

Although most habeas petitions are attacks on existing judgments, an individual who is confined can petition for a writ of habeas corpus at any stage of a criminal proceeding. For example, a defendant who is required to post a high bail has the right to file a petition for habeas corpus claiming that the bail amount is so excessive that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Back in Time

A habeas petition can base a claim that a conviction violates constitutional rights on either legal grounds (such as an error in procedure) or factual grounds (such as new evidence of innocence). However, if the legal rules have changed since the conviction—for example, the Supreme Court has made a new ruling on the matter—those new legal rules don’t always apply to prior rulings.

EXAMPLE: Seth was convicted of domestic violence. Since Joan, the target of Seth’s abuse, was afraid to testify against him in court, the conviction was based largely on hearsay testimony from a police officer who spoke to Joan shortly after the assault. Two years after Seth’s conviction, the U.S. Supreme Court decided in the case of Crawford v. Washington  that hearsay statements of nontestifying witnesses are generally inadmissible against criminal defendants. (541 U.S. 36 (2004).)  Despite the Court’s ruling, Seth’s federal habeas petition asking that his conviction be set aside based on the new rule will be denied. (However, a state court considering the same habeas argument could conceivably apply the Crawford rule retroactively.)

Unconstitutional Confinement

Prisoners (and others held against their will, like a defendant committed to a mental institution after a not-guilty-by-reason-of-insanity plea) can file habeas petitions challenging not only their convictions, but also the conditions of their confinement. For example, a prisoner who is subject to repeated beatings may file a habeas petition seeking transfer to a different prison facility on the grounds that his present confinement is illegal because prison guards allow the beatings.

A Tough Time in Federal Court

Federal law permits people convicted in state court to file a habeas corpus petition in federal court, claiming that the conviction or one of its legal consequences (such as the sentence or prison conditions) violates federal law or the U.S. Constitution (or a U.S. treaty). (28 U.S.C. § 2254.)

But, as great as The Great Writ may be, Congress and the federal judiciary have devoted great effort in recent years to putting obstacles in the path of habeas petitioners. One reason is the belief of many federal judges that they had been swamped with meritless habeas petitions. Another is federal judges’ general reluctance to interfere in state criminal processes.

Habeas procedures are so complex that many petitioners whose habeas petitions are turned down by state court judges are shut out of federal court entirely. For example, an inmate’s failure to “exhaust all state remedies”—that is, to make a timely appeal of an adverse state court ruling—may prevent him or her from filing a habeas petition in federal court. In short, federal judges reject the vast majority of habeas corpus challenges to state court convictions.

Get a Lawyer

The rules regarding writs and other forms of post-conviction relief are complex. So is the substantive law that writs address. If you’ve been convicted of a crime or are being deprived of your liberty and wonder whether you’re entitled to relief, consult an experienced appellate criminal defense lawyer. Such a lawyer can analyze your case and guide you through the procedural maze.

For more on related topics, see Appeals in Criminal Cases.

Talk to a Lawyer

Start here to find criminal defense lawyers near you.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Swipe to view more

Talk to a Defense attorney

We've helped 95 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you