A Legal Introduction to Habeas Corpus

The petitioning of a court to grant a Writ of Habeas Corpus, frequently coupled with a request for an
Evidentiary Hearing and a Motion for a New Trial, might be called the "Hail Mary pass" in criminal
law. Such a request may additionally be appropriate in non-criminal situations in which illegal
detention, such as a violation of child custody orders or alleged unlawful custody of an elderly
individual, is asserted.
A "writ" is a court order. "Habeas Corpus" is Latin for "you have the body." This petition essentially
requests a court to order that an individual be produced in court and a hearing be conducted
concerning the circumstances of her or his detention, probation, or parole. The Writ of Habeas
Corpus typically exists independently of other legal procedures and exists after all other appeals
have been exhausted. Thus it is not a "direct appeal" but a "collateral appeal." This comment
provides a brief and incomplete educational introduction to what is called the "Great Writ."
It may be easy to confuse "habeas corpus" and "corpus delicti." Corpus delicti ("body of the crime" not a literal body) refers to what must be proven in court to secure a conviction of a given criminal
offense. One may be convicted of murder without a body being found. A remedy related to the Writ
of Habeas Corpus is the Writ of Coram Nobis ("which things remain in our presence"). Coram Nobis
attacks a prior conviction when the defendant is no longer in custody and continues to suffer a
deprivation of civil liberties. Always consult an experienced attorney in all criminal law and
detention situations.
The following are several highlights from the rich history of habeas corpus. The English history of
the Writ of Habeas Corpus exists from at least 1300 and was codified by the English Parliament in
the Habeas Corpus Act of 1679. Article I, Section 9, Clause 2 of the U.S. Constitution states: "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." President Abraham Lincoln unilaterally suspended it in
1861 and subsequently obtained congressional authorization in 1863. The U.S. Supreme Court held
that Guantanamo detainees have habeas corpus rights (Boumediene v. Bush (2008)).
The right of ordinary criminal defendants to petition for a Writ of Habeas Corpus may exist in both
state and federal courts. However, a habeas corpus review is restricted or unavailable when claims
are based upon evidence contained in a trial record, "record claims," and they were not
appropriately appealed in the ordinary trial and appellate process. "Extra-record claims," those
involving new or additional evidence, are most likely to be heard. However, habeas corpus and
evidentiary hearing claims must typically relate to a deprivation of rights guaranteed by the U.S.
Constitution.
Many habeas corpus claims are based upon asserted ineffective assistance of counsel, connected to
the Sixth Amendment. This requires a showing of deficient performance that prejudiced the defense,
such that the outcome of the case would have been different but for the ineffective performance,
considering the total circumstances (Strickland v. Washington (1984)). Trial strategy decisions
alone, such as how witnesses are questioned or arguments are made to the jury, or lack of attorney
trial experience, are typically insufficient to overturn a conviction. If a guilty plea were made in
exchange for a plea bargain and the defendant when asked by the judge if she or he were satisfied
with the representation provided by the defense attorney, answered "yes," it is virtually assured that
an ineffective assistance of counsel claim will be denied.

Another ground, based upon the U.S. Supreme Court's decision in Brady v. Maryland (1963), is the
failure of the prosecution to disclose material, exculpatory evidence to the defense. Evidence is
"material" only if there is a reasonable probability that, with disclosure, the trial result would have
been different. Related to this claim is an assertion that the prosecution knowingly used false or
perjured testimony.
Actual innocence claims based upon newly discovered evidence are addressed in the U.S. Supreme
Court's decision in Herrera v. Collins (1993). Federal guarantees of due process are violated when
an innocent person is imprisoned. The new evidence must unquestionably establish innocence such
that no reasonable juror could have found the defendant guilty if she or he had access to the
evidence. If a witness or victim has recanted, a hearing is essential to determine credibility.
Scientific advances in forensic evidence, such as DNA, are significant in many evidentiary
proceedings.
A variety of constitutional violations may surround the concept of due process. The Fifth and
Fourteenth Amendments state that no person shall be "deprived of life, liberty, or property without
due process of law." In all of these situations, one must consult experienced legal counsel.
Requests for an evidential hearing, typically coupled with a request for a new trial, are, like habeas
corpus petitions, highly complex matters that require experienced legal counsel. Precise wording in
the request is somewhat stylized and invariably mentions that it should be granted "in the interest of
justice." Sworn statements (affidavits) are part of the package. The judge hearing the request has
broad discretion to determine the credibility of witnesses and to make findings of fact and
conclusions of law. There is a detailed federal habeas corpus statute at 28 U.S.C. Secs. 2241 - 2266.
Many states have similar statutes.
There are many presumptions that favor the finality of criminal convictions. The burden of proof is
always on one who challenges the evidence, trial procedures, or conviction. A "harmless error"
standard frequently requires a demonstration of "substantial and injurious effect" to overturn a
verdict. A judge may have considerable discretion in considering the entire circumstances.
Typically, changes in legal standards will not be applied retroactively to grant a Writ of Habeas
Corpus (Teague v. Lane (1989)). That is, "new law" created after the direct review of a conviction
cannot be used in habeas corpus to overturn the conviction. However, there are exceptions such as,
for example, a specific statement that the new standard applies retroactively, or it decriminalizes the
conduct in question or prohibits certain punishments, or it specifically addresses an issue of
fundamental fairness at trial.
One must carefully investigate the procedures and deadlines for filing a habeas corpus petition.
Federal statutes in general impose a one year deadline from the end of direct appeals or the
discovery of new evidence. However, due to procedural matters such as the appropriate location and
court to conduct a hearing (venue), the time in with the prosecutor has to answer, the collection of
evidence (investigation and discovery), etc., it is possible that a request for a Writ of Habeas Corpus
may linger for years in the judicial system, only to be ultimately denied. A prisoner is often limited to
one habeas corpus petition. Consequently, it is essential to present all possible claims in the petition.
This comment provides a brief and incomplete educational overview of a complex subject and is not
intended to provide legal advice. Always consult experienced legal roanoke attorneys counsel in all
specific criminal law and family law matters.
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