State Habeas Corpus

The term "habeas corpus" is translated, "to have the body." It is the Latin name for the legal procedure used to challenge the legality of a criminal conviction or the lawfulness of a defendant's detention or incarceration. Used for centuries, habeas corpus is an ancient procedure derived from English common law, rooted in the Magna Carta.

A person challenging the legality of his or her conviction or confinement files a "petition for writ of habeas corpus." If the court agrees that the conviction or confinement is unlawful, the court grants the writ and orders the appropriate remedy, including release from prison or custody. However, habeas corpus has numerous limitations in both state and federal court, so anyone considering filing a petition for writ of habeas corpus should first consult an experienced criminal defense lawyer or appellate criminal defense lawyer.

Habeas corpus should be distinguished from appeal. After a person is convicted in the state trial court, he or she has the right to appeal the conviction. The state court of appeal will review the trial transcripts and evidence in the record to determine whether sufficient evidence supports the conviction and whether any serious legal errors occurred during trial that require reversal of the conviction(s). This is called "direct appeal."

In California, after the direct appeal is completed in the state court of appeal, the defendant may file a "petition for review" in the California Supreme Court if the appeal was unsuccessful. The state courts of appeal affirm (uphold) most convictions, so most defendants in California seek further review of their convictions by filing a petition for review in the California Supreme Court. The California Supreme Court usually denies petitions for review, and after the petition is denied, the “direct appeal” process in state court has ended.

If warranted, the defendant may file a petition for writ of certiorari in the U.S. Supreme Court. The US Supreme Court sometimes agrees to hear criminal appeals from state courts if the issue involves violation of a right protected by the U.S. Constitution, and resolution of the case is likely to have nationwide significance. Most certiorari petitions are denied.

Unlike most habeas corpus cases, the direct appeal is based on the trial record, which includes the trial transcripts, clerk's transcript (containing various charging documents, motions and case-related information), and evidence introduced at trial. All of this information is collectively called, "the record." The appellate attorney composes the appeal based on the record. The appellate attorney ordinarily does not make any arguments based on information that is "outside the record." The court of appeal cannot judge a claim if the facts supporting it are not in the trial record. That is where habeas corpus usually comes into play.

If the defendant wants to raise a legal argument on appeal that is based on information "outside the trial record," the argument usually must be presented in a petition for writ of habeas corpus. This is the major difference between appeal and habeas corpus. The appeal is based on the trial record; a habeas corpus petition is usually based on information outside the trial record. If the legal error was on the trial record, the appellate attorney may raise the issue on the direct appeal.

Numerous issues may arise "outside the record." For example, a legal issue, such as, juror misconduct usually will not be reflected in the trial record. If the defendant learns years after trial through investigations that one or more jurors committed misconduct during deliberations, that juror misconduct issue will probably have to be raised in a petition for writ of habeas corpus, because it is based on evidence that is “outside the record.’

Likewise, if the defendant's attorney made serious mistakes during trial that likely affected the outcome, the evidence of the attorney's mistakes will probably be based on information outside the record, requiring a petition for writ of habeas corpus to address.

Habeas corpus is also the proper legal procedure for challenging the legality or lawfulness of decisions by state agencies, such as, parole boards. If a parole board unlawfully denies parole, the defendant's continued incarceration is probably unlawful; therefore, the proper legal remedy for challenging the continued unlawful incarceration is habeas corpus.

To summarize, habeas corpus is a legal procedure used to challenge the legality of criminal judgments, detention, and incarceration. Habeas corpus is not a substitute for appeal. Courts require defendants to raise all known legal challenges to the conviction on direct appeal. However, many errors calling into question the legality of a defendant's conviction or incarceration occur "outside the record." Habeas corpus is the proper procedure for raising legal challenges based on evidence outside the record and for challenging the lawfulness of decisions by state agencies, such as, parole boards, that implicate the legality of a person's continued incarceration.