General requirements for bringing a habeas petition.
Discussed below are the general requirements and rules for habeas corpus petitions. However, there are a number of exceptions which may apply depending on the facts of each individual case. Oakland criminal defense attorney David Reagan is familiar with the various exceptions and he will need to assess the facts of your case to determine if any of the exceptions are applicable in your case.
Traditionally, the exclusive function of a habeas corpus petition was to gain freedom from actual custody, or actual imprisonment. That meant only petitioners that were physically confined in jail or prison could petition for habeas relief. The standard has since been relaxed and now petitioners that are in “constructive custody” can also petition for habeas relief. Constructive custody extends to petitioners on probation and parole, and petitioners out on bail or release on their own recognizance (O.R.). (See Jones v. Cunningham (1963) 371 U.S. 236, 242 [petitioners on parole]; In re Peterson (1958) 51 Cal.2d 177, 181-182 [petitioners on bail]; In re Smiley (1967) 66 Cal.2d 606, 613 [petitioners on O.R.]) Where a petitioner is required to register as a sex offender under Penal Code section 290, but is not on parole or probation, the petitioner is not in constructive custody, and therefore cannot petition for habeas relief. (See In re Douglas (2011) 200 Cal.App.4th 236, 248.)
Exhaustion of other remedies.
The purpose of habeas corpus is to provide a remedy where no other legal remedy exists - no other legal procedure for changing the situation. Where the petition has another adequate remedy available, habeas corpus is generally not an available remedy. (See In re Alpine (1928) 203 Cal. 731, 739.)
As such, a habeas corpus petition will generally be denied where it raises issues in which the petitioner could have, but failed to, ask for relief in the trial court by filing a motion, making an objection, or otherwise. (See In re Seaton (2004) 34 Cal.4th 193, 200.)
Similarly, issues that can be raised by direct appeal, i.e., issues appearing in the appellate record, cannot be raised in a habeas corpus petition. (See In re Dixon (1953) 41 Cal.2d 756, 759.) Moreover, a habeas corpus petition is not a “second appeal.” Thus, a petitioner cannot raise issue in a habeas petition that were previously raised and rejected on direct appeal. (See In re Waltreus (1965) 62 Cal.2d 218, 225.)
Where adequate administrative remedies exist, a petitioner must exhaust those remedies prior to seeking relief from a court by petition for writ of habeas corpus. (See In re Muszalski (1975) 52 Cal.App.3d 500, 508.) For example, California prisoners seeking relief from prison rules or policies must generally seek relief by filing a grievance with prison officials prior to seeking relief by habeas corpus in court. (In re Dexter (1979) 25 Cal.3d 921, 925.)
What court to file in.
The California Constitutions provides, “The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings.” (Cal. Const., Art. VI, § 10.) That means that technically a petition for writ of habeas corpus may be filed in the any of the three courts without previously being filed in a lower court. For instance, a defendant could file a habeas petition in the Court of Appeal without first filing in the Superior Court.
However, in practice, a habeas corpus petition should generally be filed first in the Superior Court, the lowest court. If the petition is denied, the defendant can then file in the Court of Appeal, and subsequently, the California Supreme Court. (See In re Steele (2004) 32 Cal.4th 682, 692 [“[B]oth trial and appellate courts have jurisdiction over habeas corpus petitions, but a reviewing court has discretion to deny without prejudice a habeas corpus petition that was not filed first in a proper lower court”].)
Although practices vary by district, when a direct appeal is pending in the Court of Appeal, the defendant should generally file a petition for writ of habeas that is related to the issues raised in the appeal in the Court of Appeal in the first instance rather than the Superior Court. (See In re Carpenter (1995) 9 Cal.4th 634, 645-646.)
California Rules of Court, rule 4.554 governs which Superior Court to file a petition for writ of habeas corpus in. If a habeas petition challenges a judgment or conviction, the petition should be filed in the Superior Court of the county where the judgment or conviction was entered. (Rules of Court, rule 4.552(b)(2)(A).) For example, if the defendant was convicted in Alameda County and the petition for writ of habeas corpus is challenging that conviction, the petition should be filed in the Alameda County Superior Court. Petitions which challenge the denial of parole or the petitioner’s suitability for parole should also be filed in the county of conviction. (See In re Roberts (2005) 36 Cal.4th 575, 585.) If on the other hand the petition challenges a prisoner’s conditions of confinement, the petition should be filed in the Superior Court of the county where the prisoner is incarcerated. (Rules of Court, rule 4.552(b)(2)(B).) If a petition is not filed in the correct county, the Superior Court may transfer the proceedings to the appropriate county.
Prohibition on successive petitions.
A petitioner cannot bring a second habeas corpus petition in the same court where that court has already denied the issues in a prior habeas petition, unless there has been a change in the facts or the law. (See In re Martin (1987) 44 Cal.3d 1, 27, fn. 3.) In other words, a defendant cannot keep bringing the same claims by filing successive repetitious habeas petitions. (See In re Clark (1993) 5 Cal.4th 750, 767-769.)
Prohibition of piecemeal presentation of claims.
All habeas corpus claims must be brought in the initial petition as claim not included in the petition will not be considered by a court in a second petition. (See In re Horowitz (1949) 33 Cal.2d 534, 546 [“[A] defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him].) This means where a defendant has multiple arguments that can be made in a habeas petition, the defendant must include all of those arguments in his or her petition. Otherwise, the defendant will have waived his or her ability to raise those issues at a later time.
Habeas corpus petitions must be brought with due diligence, meaning without significant delay. (See In re Clark (1993) 5 Cal.4th 750, 768.) There are no set time limits for filing a writ of habeas corpus petition; however, it is common for petitions to be denied because they are deemed untimely by the court.
Delay in bringing a petition for habeas corpus is measured from the time when the petition knew, or should have known, of the factual basis for the claim. (In re Clark (1993) 5 Cal.4th 750, 765, fn. 5.)
The petitioner must explain and justify any significant delay in bring a habeas corpus petition. (In re Clark (1993) 5 Cal.4th 750, 765.)
Oakland criminal defense attorney David Reagan uses his passion for social justice to overturn wrongful convictions, fight serious charges at trial, and clean all types of criminal records in the Bay Area.
"Mr. Reagan handled my court isuses in such a professional manner and had his briefs prepared so well that the Judge in Superior Court of Alameda County gave him kudos in "open court " That was the first time I have ever seen or heard of that happening. It made me very proud to be his client." -J.
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