How Do I Submit a Habeas Corpus Petition?

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  • Written By: Renee Booker
  • Edited By: E. E. Hubbard
  • Last Modified Date: 11 July 2019
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When a person is being held in custody by state or federal authority, a habeas corpus petition is one legal option that the prisoner has to ascertain his or her release. As with many terms used in the law, habeas corpus originates from the Latin, which literally translated means "you have the body." Many jurisdictions throughout the world guarantee prisoners the right to file a habeas corpus petition. The right to habeas corpus relief is not precisely guaranteed in the U.S. Constitution; however, Article One, Section Nine does hold that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In order to file a habeas corpus petition, the defendant, or his or her representative, must first confirm that all other post-conviction remedies have been exhausted and then secure, prepare, and file the petition with the appropriate court.


Within the United States, a habeas corpus petition may be filed in federal court, and, in some states, it may be filed with the high court in the state. Before filing the petition, a prisoner must generally exhaust all other legal remedies. For example, a defendant convicted of a crime, in most cases, has an absolute right to appeal to the appropriate appeals court. All appeal rights must be exhausted before filing for habeas corpus relief. In addition to an appeal, a prisoner may file a writ of certiori, which is only issued by the Supreme Court at the federal level, although some state courts also use writs of certiori.

Although there are other differences between post-conviction relief, such as an appeal or writ of certiori and a writ of habeas corpus, one of the biggest differences is in what may be addressed. When a court reviews an appeal or a writ of certiori, it is limited to issues that were raised in the original trial based on the record presented to the court. A habeas corpus petition, on the other hand, may address issues not raised at the original trial. Many habeas corpus petitions are based on the allegation that a constitutional right was denied the defendant during the trial.

Because the right to request habeas corpus relief is considered such a fundamental part of the judicial process within the United States, most prisons or jails have the proper petition forms available for prisoners to file the petition pro se, or without legal representation. The actual petition is rather simple, only requiring the defendant's name, identifying information, and the reason for requesting habeas corpus relief.

At the federal level, the petition is usually filed in the district court for the jurisdiction where the defendant was convicted. For a state court petition, a prisoner should consult the state statutes to determine in which court the petition must be filed. Once filed, the court will rule on the petition and, if granted, will bring the prisoner before the court to address the merits of the case.



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