To: Law Clerks

From: Jessica Barriere

Date: June 27, 2016
Re: Habeas Corpus Memo
A. Overview of Habeas Corpus Proceedings
Habeas corpus is the legal procedure that prevents the government from holding a person
indefinitely without showing cause, providing citizens protection against illegal imprisonment.
The purpose of a Petition for a Writ of Habeas Corpus is to challenge the legality of a prisoners
confinement and does NOT provide for an inquiry into a prisoners guilt or innocence. Habeas
corpus relief is appropriate when the relief sought is release, a hearing which may lead to
Petitioners release, or a new parole hearing.
In Maryland, these petitions are filed in Circuit Court or Court of Appeals. The Court
must immediately resolve the petition or refer the petition to the Circuit Court where Petitioner
was convicted. These petitions are typically based upon excessively high bail or the bad faith,
fraud, or collusion by counsel with any State official.
B. Maryland Law Regarding Habeas Corpus
As stated by Maryland Code, Courts and Judicial Proceedings 3-702, the following
individuals may petition for a writ of habeas corpus:
A person committed, detained, confined, or retrained from his lawful liberty within the
State for any alleged offense or under any color or pretense or any person in his behalf,
may petition for the writ of habeas corpus to the end that the cause of commitment,
detainer, confinement, or restraint may be inquired into.
According to Maryland Rule 15-302(a), a petition for a writ of habeas corpus must
include:
1) Affidavit of Petitioner
2) A statement that the individual by or on behalf of whom the writ is sought is
unlawfully confined or restrained
3) The place where the individual is confined or restrained, if known

4) The name and any official capacity of the person by whom the individual is confined
or restrained or, if not known, a description to enable that person to be identified
5) The circumstances and the cause of the confinement
6) If the confinement is pursuant to a judgement or order of a court, the name of the
court, the date of the judgement or order, and the case number, if known
Pursuant to Maryland Rule 15-302(b), if a petition for a writ of habeas corpus is filed
by or on behalf of an individual confined as a result of a sentence for a criminal offense, of an
order in a juvenile proceeding, or of a judgement of contempt of court, the petition, in addition to
the general provisions (listed above), the petition must state:
1) Whether any previous petition for habeas corpus or other post conviction relief has
been filed with respect to the confinement
2) With respect to each previous petition for habeas corpus or other post conviction
relief: (A) the court or judge to whom the petition was directed, (B) all grounds of the
petition, (C) the determination made on the petition, (D) whether any appeal or
application for leave to appeal was filed from any order on the petition, and (E) any
determination made on the appeal or application for leave to appeal
3) All grounds for the issuance of the writ that were not asserted in any previous petition
for habeas corpus or other post-conviction relief
According to Maryland Rule 15-303 Procedure on Habeas Corpus Petition, action on
petition is based upon whether the Petitioner complies with Maryland Rule 15-302. If the
Petitioner complies with this rule, the judge must grant the writ, unless:
1) The judge finds the Petitioner is not entitled to any relief
2) The legality of the confinement was determined in a prior habeas corpus or other post
conviction proceedings, and no new ground is shown sufficient to warrant issuance of
the writ
3) There is no good reason why new grounds now raised by the Petitioner were not
raised in previous proceedings
4) There has been an unjustified delay in filing the petition that has prejudiced the ability
of the person having custody of the individual confined or restrained to respond to the
petition
C. Petition for a Writ of Habeas Corpus Versus Other Appellate Remedies
A Petition for a Writ of Habeas Corpus can only be used to raise claims of the legality of
a prisoners confinement. These claims can also be raised in a Petition for Post-Conviction Relief

or an appeal. It is important to remember that a Petition for a Writ of Habeas Corpus is only
appropriate when the relief sought is release or a new parole hearing. If another form of relief is
sought, such as a reconsideration of sentence, another appellate remedy must be used. Maryland
Rule 15-303 states:
When a petition for a writ of habeas corpus is filed by or on behalf of an
individual confined as a result of a sentence for a criminal offense, including a
criminal contempt, or a commitment order in a juvenile delinquency proceeding,
the judge may order that the petition be treated as a petition under the Post
Conviction Procedure Act if the individual confined consents in writing or on the
record and the judge is satisfied that the post-conviction proceeding is adequate to
test the legality of the confinement. Upon entry of the order, the judge shall
transmit the petition, a certified copy of the order, and any other pertinent papers
to the court in which the sentence or judgment was entered. Subsequent procedure
shall be as in a post-conviction proceeding.
In sum, the same claims can be raised in both a Petition for a Writ of Habeas Corpus and a
Petition for Post-Conviction Relief. The Uniform Post-Conviction Procedure Act provides a
remedy where a petitioner may proceed as an indigent person and have counsel appoint for him
or her if the petitioner is unable to pay costs or employ counsel, whereas in a habeas corpus
proceeding, the petitioner is not entitled to have counsel appointed (Md. Law Encyclopedia
Habeas Corpus 32). If the court determine that the petitioner would benefit from the
opportunity to be appointed counsel, the court may decide to construe the Petition for a Writ of
Habeas Corpus as a Petition for Postconviction Relief.
A Petition for a Writ of Habeas Corpus and a Petition for a Writ of Coram Nobis
CANNOT address the same claims. A Petition for a Writ of Coram Nobis must be filed by a
person who is NOT incarcerated or on probation/parole, whereas a Petition for a Writ of Habeas
Corpus must be filed by someone who is incarcerated or detained. In addition, a Petition for a
Writ of Coram Nobis challenges the grounds of a conviction and collateral consequences of that

conviction whereas a Petition for a Writ of Habeas Corpus challenges the legality of a prisoners
confinement with no inquiry into a prisoners guilt or innocence, or consequences of a
conviction.
D. Appeals of Habeas Corpus Decisions in Maryland
The decision can only be appealed where specifically authorized by statute1. There are
only four such statutes that authorize an appeal: (1) CP 9110, which authorizes appeals in
extradition cases; (2) CJP 3707, which authorizes an application for leave to appeal in cases
involving right to bail or allegedly excessive bail; (3) CJP 3706, which provides for an appeal
if a court issued a writ of habeas corpus based on the unconstitutionality of the law under which
the petitioner was convicted (such a situation would create an avenue for the state to appeal a
granting of a writ of habeas corpus); and (4) CP 7107, a provision in the Uniform
Postconviction Procedure Act, which permits an appeal if the writ was sought under CP 9
110 or for a purpose other than to challenge the legality of a conviction or sentence.
E. Maryland Habeas Corpus Versus Federal Habeas Corpus
Habeas corpus petitions in Maryland must allege that the conviction or sentences violate
the U.S. Constitution, Maryland state law, or the Maryland Constitution. The petitioner must be
detained in a Maryland state prison. Federal habeas corpus petitions must allege that the
conviction or sentence violate the U.S. Constitution, a federal law, or a U.S. treaty (28 U.S.C.
2254(a)). Federal habeas corpus petitions cannot contain allegations solely based on state law or
a state constitution and may only occur AFTER the entire state direct appeal and post-conviction
processes are complete.
1 See Gluckstern v. Sutton, 319 Md. 634

F. Successful Claims Raised in Maryland

Few Petitions for a Writ of Habeas Corpus are successful. Claims that have been
successfully raised include:
1) Reducing the amount and conditions of bail for a defendant awaiting trial2
2) Failure to credit toward time served in another prison toward a Maryland sentence3
G. Unsuccessful Claims Raised in Maryland
There have been claims raised in Maryland that have been found by Maryland Courts as
inappropriate for relief under habeas corpus:
1) The rulings of the trial court on motions for new trails and the denial thereof4
2) Any matters of alleged prejudice on the part of the trial judge, defects in the
indictment, or sufficiency of the evidence5 (are available for consideration on appeal
but may not be considered on habeas corpus)
3) Sufficiency of evidence6
4) A person seeking relief from imprisonment on bail7 (different from excessive bail
claims, these claims refer to those who did not believe their bail to be excessive and
were released on bail, but feel they are imprisoned by this bail)

2 See State v. Thornton 84 Md. App. 312

3 See Chavis v. Smith, 834 F.Supp. 153

4 See Ford v. Warden of Md. Penitentiary, 214 Md. 649 and Legrand v. Warden of Md. House of
Correction, 205 Md. 662

5 See Ford v. Warden of Md. Penitentiary, 214 Md. 649 and Whitley v. Warden of Md. House of
Correction, 222 Md. 608

6 See Olewiler v. Brady, 185 Md. 341, 344, 44 A.2d 807

7 See Hendershott v. Young, 209 Md. 257, 120 A.2d 915

5) Governor refusing to approve a Parole Commissions recommendation that inmate be

released (life sentences)8
H. U.S. History of Habeas Corpus
In 1789, the U.S. Constitution made no explicit provision for the writ of habeas corpus,
providing only in the Suspension Clause that the privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion of the public safety may require it.
The Judiciary Act of 1789 granted federal courts authority to issue habeas corpus to prisoners in
federal custody or committed for trial before a federal court.
Throughout the 1800s and the 1900s, the writ was expanded and further developed. In
1807, the Supreme Court held that federal courts could not issue habeas corpus to prisoners held
by state or local governments. The Force Bill of 1833 authorized federal courts to grant the writ
to those in state custody as a result of acts performed pursuant to federal law. During the Civil
War, Abraham Lincoln suspended habeas corpus in regards to arrests in certain areas along
military transport lines and all arrests for disloyal conduct in Union territory. This action led to
the Habeas Corpus Act of 1863, which permitted the President to suspend the writ for the
duration of the war but also required the military to report all arrests to the federal courts and to
release prisoners not indicted promptly. In 1867, Congress made the writ available to any person
restrained of his or her liberty in violation of the constitution, or of any treaty of law of the
United States. This expanded the writ to state prisoners claiming that their detention violated a
federal right. Throughout 1879 to 1915, the Supreme Court issued decisions limiting habeas
corpus for state prisoners to cases in which the state court lacked jurisdiction, mandating that a
state prisoners must exhaust all possible remedies in the state courts before seeking habeas

8 See Lomax v. Warden, Maryland Correctional Training Center, 356 Md. 569, 741 A.2d 476

corpus from a federal. These decisions disallow the re-examination of constitutional questions
decided by a state court of competent jurisdiction and holds that habeas corpus cannot be granted
to a state prisoner if that state has in place an adequate corrective process for the denial of
constitutional rights.
From the 2000s to the present day, efforts to combat terrorism after 9/11 led to legislative
action regarding the habeas corpus rights of aliens designated by military authorities as enemy
combatants. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006
eliminated such rights for enemy combatants detained at Guantanamo Bay, Cuba, and elsewhere.
The Supreme Court overturned these laws in part, however, ruling in 2008 on Boumediene v.
Bush that Guantanamo detainees possessed habeas rights because the United States exercised
some sovereignty over that territory a decision that remains in force.