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The Writ of Habeas Corpus

**Please Note: In the Andrade case, the U.S. Supreme Court held that the "proportionality" test under the 8th Amendment "cruel and unusual" clause was not a "clearly established" rule and therefore Andrade's sentence affirmed by the California appellate process should have been upheld--thus basically only allowing for a direct writ to the U.S. Supreme Court on the issue.

Click Here for the Rules for Filing a Petition to the U.S. Supreme Court

The writ of habeas corpus is a means by which a court questions the legality of a person’s imprisonment. When a court issues a writ of habeas corpus, the party holding the prisoner must respond to the court, explaining the legal justification for the custody. If the court is not satisfied that there is legal justification for the custody, it may order the prisoner released.

The right to petition for a writ of habeas corpus is protected by the United States Constitution (Article I, section 9) and governed by federal statutes. The statutes governing habeas corpus in federal courts generally are found in Title 28 of the United States Code at sections 2244 through 2266. The section particularly important for persons in state custody is section 2254 .

The federal courts will grant relief to a petitioner for a writ of habeas corpus only if

• the state court decision was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or
• the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. (The state court's determination of a factual issue will be presumed to be correct, however, and you have the burden of rebutting that presumption by clear and convincing evidence.)

Prerequisites for Filing a Petition

There are certain prerequisites for filing a petition for habeas corpus in federal court.

• The petitioner must be in custody. Custody includes prison, parole and probation.
• The petitioner must have presented every claim in the petition to the state court first, and have pursued each claim all the way to the California Supreme Court. This is called exhausting a claim. (There are some exceptions, which are explained below.)
• The petition must be filed in federal court not later than one year from the date that the California Supreme Court made its decision (which will usually be the Supreme Court's decision to deny review of your case, but in some cases will be the Supreme Court's decision made after it has reviewed the decision of the Court of Appeal.) The clock stops running while a state habeas corpus petition is pending in the state court. There are some other exceptions to the one-year rule, which are explained below.
• Every claim in the petition must arise under federal law.

There are some exceptions to the rule that each claim must have been presented in state court first. If the state doesn't have a process available to hear the claim and correct the error complained of, you don't have to take your claim to state court first. You are also excused from presenting your claim in state court first if the state's process is ineffective to protect your rights.

You normally get only one opportunity to raise a habeas corpus claim in federal court. So if you file a petition for habeas corpus in federal court and the petition is unsuccessful, you cannot make the same claim in a new petition. Also, you should present all your claims in a single petition. Sometimes you will not have exhausted all your claims in state court at the same time. You should wait until they are all ready to go to federal court.

You can present a second petition for habeas corpus, raising a new claim, in two cases:

• when you are relying on a new rule of law that the Supreme Court has made retroactive to cases in which the appeal was completed before the rule was announced. You must file your claim within one year of the announcement of the new rule.
• when you are relying on a factual basis that you could not have discovered earlier and which enables you to prove by clear and convincing evidence that no reasonable judge or jury could have found you guilty, if it had not been for the unconstitutional error you are complaining about. You must file the petition within one year of the time the new factual basis is discovered (or would have been discovered if you had been diligent enough.)

Appointment of Counsel for Indigent Petitioners

There is no constitutional right to the appointment of counsel for habeas corpus petitions. By statute (28 USC 2254), the federal court may appoint counsel for an indigent petitioner. Counsel should be appointed if the court decides that the petition may have some merit and that an evidentiary hearing is needed. The court will not appoint counsel if it decides that the petition lacks merit.

How to File a Petition A petitioner filing a petition for habeas corpus on his own (called in pro. per. or per se) fills out a form that is provided by the court. You will have to sign the petition under penalty of perjury, so don't say anything that is not true. You can get a form by writing to the federal court, or from a court's website (except for the Eastern District). The websites are as follows:

Northern District Click on forms
Central District Click on forms, then on civil forms.
Eastern District Petition forms are not available at this site. Call or write to the court, or use another court's form and change the district to Eastern.
Southern District Click on filing procedures, then forms, then civil.

You should file your petition in the District that contains the county you were convicted in.

• Northern District:
  Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo, and Sonoma Counties.
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• Central District:
  Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara and Ventura Counties.
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• Eastern District, Fresno Division:
  Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne Counties.
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• Eastern District, Sacramento Division:
  Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba Counties.
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• Southern District:
  San Diego and Imperial Counties.
  
  You must send a five dollar filing fee, unless you first obtain permission to file in forma pauperis. Forms for filing in forma pauperis may be obtained from the courts' websites (but not the Eastern District's) or by writing to the court. You will need for a prison official to fill out the Certification section stating how much money is in your account.
  
  Mail the petition to the appropriate address:
  
  United States District Court, Northern District
  450 Golden Ave, 16th Floor
  San Francisco, CA 94102
  Tel: 415-522-2000
  
  United States District Court, Central District
  312 N. Spring St.
  Los Angeles, CA 90012
  Tel: 213-894-0289
  
  United States District Court, Eastern District
  Fresno Division
  1130 "O" St., Room 5000
  Fresno, CA 93721
  559-498-7483
  
  United States District Court, Eastern District
  Sacramento Division
  501 "I" St., Ste 4-200
  Sacramento, CA 95814
  Tel: 916-930-4000
  
  United States District Court, Southern District
  880 Front ST., Rm. 4290
  San Diego, CA 92101
  Tel: 619-557-5600

  Please send questions or comments to factsla@sbcglobal.net.