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Petitions for Writ of Habeas Corpus

Frequently Asked Question Answer by a Criminal Appeals Lawyer

A California petition for a writ of habeas corpus “collaterally attack[s] a presumptively final criminal judgment.” In this article, California Criminal Appeals Lawyer Matthew Barhoma, founder of Power Trial Lawyers, provides information on this option for post-conviction relief, including:

  1. What Is a Writ of Habeas Corpus?
  2. What Is the Deadline to File a Petition for Writ of Habeas Corpus?
  3. How Many Times May a Petition for Writ of Habeas Corpus Be Filed?
  4. What Arguments May Be Included in a Petition for Writ of Habeas Corpus?
  5. What Is the Process of Filing a Petition for Writ of Habeas Corpus?
  6. Do I Need a Habeas Corpus Lawyer?
What Is a Writ of Habeas Corpus?

A California writ of habeas corpus is an “extraordinary writ,” meaning it is not available as a matter of right and may only be filed in specific, limited situations. A writ is akin to an order issued by the court mandating an action be taken, in this case, that the custodian (e.g., the California Department of Corrections facility where the individual is housed) produce the petitioner before the court so that the court may inquire into the lawfulness of his or her detention.

The right to file a petition for writ of habeas corpus is guaranteed by the California constitution. In order to be eligible to petition for such relief, the petitioner must be “in custody,” either actually or constructively. Constructive custody applies in cases such as being on probation, parole, out on bail, or released upon one’s own recognizance.

More background on Petitions for a Writ of Habeas Corpus can be found here.

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What Is the Deadline to File a Petition for Writ of Habeas Corpus?

A petition for writ of habeas corpus cannot be raised until the time for filing of a notice of appeal and/or a request for a certificate of probable cause has passed. Unlike federal and some other state courts’ habeas corpus proceedings, there is no set time for raising a state court petition for writ of habeas corpus in California. However, courts in California still require a person to be diligent in seeking relief whenever the facts and law supporting the petition are known or should have been known. "[A] habeas corpus petition should be filed as promptly as the circumstances of the case allow.... [O]ne who seeks extraordinary relief... must point to particular circumstances sufficient to justify substantial delay[.]’”

However, a reviewing court will still consider an "untimely" petition on the merits, despite the absence of justification for the delayed presentation of the claim, where the petition's allegations, if proven, would establish a "fundamental miscarriage of justice" concerning either the conviction or sentencing proceedings. For purposes of this rule, "fundamental miscarriage of justice" is narrowly defined as consisting of four categories, including (i) “that [the] error of constitutional magnitude led to a trial that was so fundamentally unfair that, absent the error no reasonable judge or jury would have convicted the petitioner;” (2) the petitioner is actually innocent of the crime or crimes of which he or she was convicted; (3) the death penalty was imposed by a sentencing authority that had such a grossly misleading profile of the petitioner before it that, absent the trial error or omission, no reasonable judge or jury would have imposed a death sentence; or (4) the petitioner was convicted or sentenced under an invalid statute.

Additionally, Courts may decide to hear a petition for a Writ of Habeas Corpus that would otherwise be deemed “tardy”, if there is exceptional or compelling arguments as to why. Often perfecting you case, laid our factually, can be a reasonable excuse. More, if you were actively investigating your case or newly discovered evidence came about.

It is generally recommended to bring your petition for a Writ of Habeas Corpus in its first instance and to do so competently. It is also recommended that you consult with a California criminal appeals attorney who has experience in binging petitions for a writ of habeas corpus. You can consult with any Power Trial Lawyers attorney by clicking here.

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How Many Times May a Petition for Writ of Habeas Corpus Be Filed?

Multiple habeas petitions are generally not permitted in California and a petitioner is expected to include all habeas claims in his or her first habeas petition. However, where the factual basis for the claim was unknown to the petitioner and he had no reason to believe that the claim might be made, or where the petitioner was unable to present his claim, the court will continue to consider the merits of the claim if asserted as promptly as reasonably possible." A change in law or fact can be a sufficient reason for a successive petition.

If you feel like you have a successive petition (meaning more than one), but you think you have strong grounds for a Writ of Habeas Corpus Petition, consult with a Los Angeles Writ of Habeas Corpus lawyer timely.

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What Arguments May Be Included in a Petition for Writ of Habeas Corpus?

The burden of “initially to plead[ing] sufficient grounds for relief, and then later…prov[ing] them” falls upon the petitioner. The petition must specifically identify what illegality exists and include any reasonably available documentary evidence, including trial transcripts and affidavits.

Commonly used grounds which may be included in a petition for writ of habeas corpus include, but are not limited to, the following:

  1. Ineffective Assistance of Counsel. This means that (i) an attorney fell below an objective standard of reasonableness, as judged by prevailing professional norms; and (ii) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
  2. False Evidence. Evidence which is “substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to the person’s incarceration,” including “[f]alse physical evidence” or “opinions of experts that have…been repudiated…or undermined” is considered false.
  3. New Evidence. Evidence that is “credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial” and “that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching” is considered new.

However, it is noteworthy that, as a general rule, a petitioner cannot raise issues which could have, but were not, raised on direct appeal via a subsequent habeas petition. Additionally, a petitioner cannot re-raise issues which were raised and rejected on direct appeal via a subsequent habeas petition. There are several exceptions to this rule, including claims of a “clear and fundamental constitutional error” that “strikes at the heart of the trial process,” a change in the law benefitting the petitioner, and when ineffective assistance of counsel (or appellate counsel) is alleged.

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What Is the Process of Filing a Petition for Writ of Habeas Corpus?

The first step in preparing a petition for writ of habeas corpus often involves retaining a California Criminal Appeals Lawyer and/or a private investigator to conduct an investigation into claims which may give rise to relief. After the investigation is completed, a petition containing these findings will be drafted.

A petition for writ of habeas corpus is typically filed in the Superior Court where the petitioner was convicted. The Court receiving the petition will then evaluate it within 60 days by asking whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief.

If a petitioner fails to make a prima facie case for relief, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an order to show cause (OSC). The issuance of an order to show cause indicates the issuing court's preliminary assessment that the petitioner would be entitled to relief if his factual allegations are proved. Alternatively, the court can also ask for an informal response from the State or custodian of records prior to rendering a determination.

Once an order to show cause has been issued, the State will be required to file a response to the petition, called a “return” within 30 days, to which the petitioner has the opportunity to respond, also within 30 days. In some cases, after the pleading phase has concluded, the court will order an evidentiary hearing on the petition. At that hearing, evidence will be placed on the record, oftentimes including testimony, and the court will render a determination as to whether the petitioner’s incarceration is legal, i.e., granting or denying the petition. If the court denies the petition, the petitioner will be remanded to the custody of the state. If the court grants the petition, the illegal portion(s) of the conviction and/or sentence will be vacated. Depending on the nature of the court’s order, is possible that the petitioner will then face resentencing or retrial.

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Do I Need a Habeas Corpus Lawyer?

While petitioners may file petitions for writs of habeas corpus on their own, or in a pro per capacity, due to the procedural complexities (e.g., timeline issues, the successiveness risk associated with each new writ filed, etc.), multifaceted arguments to be made, investigative work and intricate drafting style necessary to effectively prepare, compose and be successful on a petition for writ of habeas corpus, it is highly recommended that a California Criminal Appeals Lawyer, such as Power Trial Lawyers, be retained to represent a petitioner in pursuing habeas relief.

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