The writ of habeas corpus, also known as the Ancient Writ because it originated in England during the Middle Ages, literally means an order to produce the body.
In modern practice, the writ of habeas corpus is an order issued by a judge in the legal district where a prisoner is incarcerated and it is served on the person in charge of the facility in which the prisoner is serving the sentence, typically a warden. The order directs the warden to produce the prisoner in court at a specific date and time for a hearing regarding whether there is a proper legal basis for the prisoner’s incarceration.
The prisoner, or someone acting on the prisoner’s behalf (i.e., typically a jail-house lawyer or a lawyer), prepares a petition (i.e., a request) for a writ of habeas corpus alleging facts by sworn affidavit and making legal arguments that, if true, would constitute a confinement in violation of a constitutional right requiring the court to issue an order releasing the prisoner or granting a new trial.
Every person in this country has a Fifth and Fourteenth Amendment constitutional right to due process of law with the odious exception of the recently enacted National Defense Authorization Act, or NDAA, which authorizes the military to seize and indefinitely detain any individual in the world no matter where situated — including citizens of the United States — pursuant to an order issued by the president. The president also claims to have the power to order people assassinated and has exercised that power at least twice that we know about. The constitutionality, legitimacy, and morality of those claims are beyond the scope of this article.
The Due Process Clause, as it is called, of the Fifth Amendment applies to people prosecuted by federal officials (i.e., United States Attorneys or Department of Justice lawyers) for violating federal crimes while the Due Process Clause of the Fourteenth Amendment makes the Due Process Clause of the Fifth Amendment applicable to people prosecuted by state officials (i.e., a state prosecutor) for violating state laws.
Due process of law generally means people have a constitutional right to a speedy and public trial before an impartial jury in the jurisdiction where the crime was allegedly committed. Due process also includes the Sixth Amendment right to be represented by a lawyer and, if the person cannot afford a lawyer, the court must appoint a lawyer to represent the person at public expense. The accused has the right to confront accusers through cross examination and the jury must presume the accused to be innocent unless the prosecution unanimously convinces the jury beyond a reasonable doubt that the accused committed the crime or crimes charged. The accused cannot be required to testify and may remain silent during the trial. The accused is entitled to have the court instruct the jury that it may not consider silence as evidence of guilt.
If the jury finds the accused guilty, he or she has the right to appeal the conviction. This is called the right to a direct appeal, which is an appeal based on all matters of record (i.e., official transcripts of all proceedings in court prepared by court reporters, or videos of those proceedings). The right to a direct appeal also includes the right to be represented by counsel.
The federal judiciary has a court of last resort called the Supreme Court and intermediate appellate courts called circuit courts of appeal. Similarly, all states have a court of last resort, or Supreme Court (except New York which inexplicably calls its trial courts supreme courts and its court of last resort the Court of Appeals). With the possible exception of a few sparsely populated states, the states have intermediate appellate courts called courts of appeal.
In practice the right to a direct appeal means the right to appeal to an intermediate appellate court and, if the conviction is affirmed, to seek discretionary review of the decision by the Supreme Court.
Discretionary review means the Supreme Court has the power to decide whether to review a decision by the intermediate appellate court.
And now back to habeas corpus. Because of all the rights that I have briefly mentioned and explained, the writ of habeas corpus does not generally come into play until after the right to a direct appeal has been exercised and exhausted leaving the prisoner without a further legal remedy. Practically speaking, this means that a prisoner would not file a petition for a writ of habeas corpus until after he or she lost the direct appeal and the Supreme Court denied review, or affirmed the Court of Appeals, assuming it granted discretionary review.
By the way, the Supreme Court of the United States, or SCOTUS, calls the application for discretionary review a petition for a writ of certiorari.
Notice that I have referred to direct appeals as a method of appealing decisions by the trial court, including jury verdicts, based on appellate court review of matters for which there is an official transcript or video to review. What about matters or issues for which there is no official transcript or video to review?
That is where habeas corpus comes into the picture in modern day legal practice. Briefly, the petition for a writ of habeas corpus is a formal legal request asking a judge to review issues or matters for which there is no official record available to review.
What sort of issue might that be?
As I said earlier, due process of law includes the Sixth Amendment right to be represented by counsel. That means “effective assistance of counsel” and the SCOTUS in Strickland v. Washington, 466 U.S. 668 (1984), defined that term as competent representation according to the standards of legal practice in the jurisdiction at the time and the failure to provide such representation must have been a “material” defect (i.e., it affected the outcome).
Why would an ineffective-assistance claim not be a matter of record?
Let us take a look at the infamous death penalty case of the sleeping lawyer. In Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), the federal Court of Appeals for the Fifth Circuit held that Mr. Burdine was denied effective assistance of counsel because his court appointed lawyer slept through much of his death penalty trial. Mr. Burdine could not support his claim against his lawyer by relying on the official court record because, not surprisingly, it did not state when the lawyer was asleep. Mr. Burdine had to rely on affidavits (i.e., sworn written statements) of people, including himself, who witnessed the lawyer sleeping during the trial.
Ineffective-assistance claims are allegations that the lawyer did or failed to do something that the applicable professional standards prohibited or required the lawyer to do. In Mr. Burdine’s case, that was the basic obligation to be awake, paying attention, and participating in the proceedings. The vast majority of these claims can only be established by affidavits from witnesses and experts (e.g., other lawyers) that, if true, would constitute an actionable claim for ineffective assistance of counsel.
In the typical case, the prisoner or his representative files the petition with supporting affidavits and legal argument. The opposing party, be it the state or federal prosecution, usually responds with a motion to dismiss the claim on the ground that, even if the court assumes for the sake of argument that the factual allegations in the petitioner’s affidavits are true, they do not state a claim for which relief can be granted.
Judges dismiss many habeas claims on this ground. This is not surprising since most petitioners are representing themselves because they cannot afford to pay a lawyer.
The only exception is death penalty cases. Due to the finality of the penalty, courts will appoint counsel in habeas cases and this is why most successful habeas claims occur in death penalty cases. Errors in other cases are just as egregious, if not more so, but the claims are not adequately presented to survive a motion to dismiss.
If the court denies the motion to dismiss, it will appoint counsel for an unrepresented petitioner and the prosecution will answer the petition with its affidavits and supporting legal argument. If the prosecution disputes the factual claims presented by the petitioner, the court will issue the writ and order the warden to produce the petitioner at an evidentiary hearing at which the court will decide the disputed facts.
If the court decides for the petitioner, it usually orders a new trial. If it decides for the prosecution, it will issue an order denying the claim.
The petitioner can appeal a decision denying the petition.
The most common successful habeas claim in death penalty cases is an allegation that defense counsel failed to adequately investigate the petitioner’s past history to discover mitigating evidence that should have been presented for the jury to consider during the sentencing phase of the trial. Mitigating evidence is any evidence about the petitioner or the crime he committed that in fairness or mercy warrants a sentence of less than death.
Another basis for a habeas claim would be newly discovered evidence, such as a DNA post-conviction exoneration.
Finally, a person is limited to only one habeas corpus petition in state and federal court. Successive petitions are generally prohibited and a failure to assert a particular claim in a state habeas petition constitutes a waiver of that claim in a federal petition. A person also must exhaust habeas claims in state court before filing for the writ in federal court.
DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.