The Federal Writ of Habeas Corpus:
18 U.S.C. §2254 and 18 U.S.C. § 2255
The Latin phrase habeas corpus translates to “you have the body.” In the legal sense, Habeas Corpus, in the Federal Court, is a petition that claims that you are being detained against your U.S. constitutional rights. This petition, called a writ of Habeas Corpus, is filed in Federal Court (U.S. District Court ) whether you are serving time in a federal or state prison and only deals with your United States Constitutional rights. The Habeas Corpus petition claims the arrest, sentence, or trial violated constitutional law, making imprisonment unlawful. Most commonly, a person in custody due to ineffective assistance of counsel can petition for a writ of Habeas Corpus to the United States District Court.
Two Varieties of Federal Writ of Habeas Corpus: § 2254 and § 2255
There are two different types of Habeas Corpus petitions. They are named for the statute under which they are found, 28 U.S.C. § 2254 and 28 U.S.C. § 2255. First, a U.S.C. § 2254 allows us to file a petition for Habeas Corpus when the client is in custody under sentence of a state court and is in a state prison. The § 2254 allows us to bring U.S. Constitutional Issues into a Federal Court (U.S. District Court) where the client has been tried and convicted in a State Court. Conversely, a § 2255 petition allows us to file a writ of Habeas Corpus when our client is in federal custody under sentence of a Federal Court.
Exhaustion of State Remedies for § 2254
It is imperative to understand that a Habeas Corpus petition is not a direct appeal, meaning you must first “exhaust” all state remedies before attempting to file a petition in the federal system. This basically means that any U.S. Constitutional issue must first be raised throughout the State Courts before bringing it to the Federal Court.
Why You Should Consider Filing a Habeas Corpus Petition?
A Habeas Corpus petition is an important tool because it allows us to continue fighting for a client even after all state measures have been exhausted. After a State Court trial, where a defendant is found guilty, appeals his case, loses at the appellate level, appeals again, and loses in the state’s highest court, we can file a writ of Habeas Corpus with the U.S. District Court and re-litigate important constitutional issues. A writ of Habeas Corpus can often be used as a much-needed last resort for clients, allowing us to argue the case and demand justification for his or her incarceration.
Preserving Issues for Appeal After Trial: § 2255
Another useful way to use a writ of Habeas Corpus is when trying to litigate issues that were not preserved at trial. If we want to argue an issue in an appellate court, the issue must be preserved. This means that the issue was brought up at some point prior to appeal. For example, if prior to contacting our firm for representation, a trial attorney failed to see certain issues that could have resulted in a client’s release from custody, an appellate court may find that an issue was not preserved for appellate review. However, the Habeas writ can be a means of preserving these important constitutional issues for appellate review so that these issues can be presented to the appellate court. This ensures that every possible argument that could be made has been made and has been preserved for appellate review.
The Process of Filing A Habeas Corpus Petition
Habeas Corpus law is not simple. Although filing a Habeas Corpus petition with the federal court system can be a long and complicated process, we are prepared to take the reigns on your case and guide you on your path to justice. There are a few important rules to know before filing your petition. The first is that you must file your petition within one year of exhausting your direct appeal. Secondly, you must present any and all claims to the State Court before bring them to a Federal Court (the exhaustion rule). Lastly, you may only file one Habeas Corpus petition at a time. Getting it right the first time is important because there are restrictions on bringing a Habeas petition the second time. To better explain the process of filing a Habeas Corpus petition, we will review the appeals process starting at the state level. As mentioned above, you must first exhaust all state remedies before filing a Habeas Corpus petition.
State Level
- Following the trial, the defendant has the right to appeal to an intermediate Appellate Court of whatever State Court in which the trial takes place.
- After appealing to the middle level Appellate Court, usually the defendant may ask to appeal to the State’s Highest Court (note that it is no longer a right, but one must request to appeal instead). In most states, the Supreme Court is the highest Court, and few states have different names for their state’s highest Court.
Federal Level
- At this point you may either (1) petition the U.S. Supreme Court to request a writ of Certiorari (i.e. that they hear your appeal) within 90 days or (2) after your 90 days expire you may file a Habeas Corpus petition to the U.S. District Court. Note that if you attempt to move directly to the Supreme Court, it is only in rare cases that you will be heard at that level.
- After filing a Habeas Corpus with the U.S. District Court and if you are denied, you do not have the right to appeal to the Circuit Court of Appeals. You must request a Certificate of Appealability first from the U.S. District Court and, if denied, then from the Circuit Court of Appeals.
- If you have completed all of the above steps, the next and last step is to ask the Supreme Court to consider your appeal by filing a Petition for Certiorari.
Habeas Corpus law might seem overwhelming, but we are here to help you understand the process and successfully file a Habeas Corpus petition when your constitutional rights have been violated. It is important to emphasize the time limit regarding when you can ask for a writ of Habeas Corpus. Contact us as soon as possible so that we can best assess the situation and decide if petitioning for a writ of Habeas Corpus is the right action for you.