Petitions for Habeas Corpus in Federal Court

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


Prerequisites for Filing a Petition

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

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:

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.