Procedure for Writ of Habeus Corpus

A Writ of Habeus Corpus can be brought at any time as long as the person is in custody, on probation, or on parole. The constitutional rights it protects are important enough that it doesn’t have the time limits of a traditional Appeal or the reasonable requirement of a Writ.

The Writ is begun by the filing of a Petition.  This is similar to the Petition in a Writ of Mandate or Prohibition. The Petition must show a “prima facie” case for relief. This means there is sufficient basic evidence to pursue the case. The Court then asks the DA to file an informal opposition. The petitioner can then file a reply to the opposition.

Unless the DA can show that the Writ is procedurally barred, the Court will issue an Order for the State to show cause why the Writ should not be granted. The State then files a written Return. This is where the State argues why Habeus relief should not be granted.

The petitioner then files what’s called a Traverse or Denial of the claims of the State. The Court may require an Evidentiary Hearing on the merits of the Writ claim.

Habeus Writs are not allowed if the person has already appealed the issue they seek review on.