Writ of Habeas Corpus

The Writ of Habeas Corpus (from the Latin “you have the body”) is a judicial mandate to a person (prison warden) or an agency (institution) to release an individual from custody.

The Writ of Habeas Corpus is a procedural and extraordinary remedy and it is mainly used as a post-conviction relief for State or Federal detainees. In a Writ of Habeas Corpus, the detainee seeks to vacate, set aside, or correct the underlying sentence for which he or she is in custody.

Under 28 U.S.C. § 2254, the Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

In addition, the Fifth and Fourteenth Amendments of the Constitution prohibit the deprivation of life and liberty without due process. Any deprivation of these rights may be ground for granting a Writ of Habeas Corpus.

Despite the fact that the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive.

Other Federal statutes, 28 U.S.C. §§ 2241 to 2256, outline the procedural aspects of federal habeas proceedings.

There are two main requirements for a Writ of Habeas Corpus are:

  • that the petitioner is in custody when the petition is filed, and
  • that a prisoner has exhausted all other remedies against the detention.

Any Federal Court may grant a Writ of Habeas Corpus to a petitioner who is within its jurisdiction.

Also, sometimes, Federal or immigration authorities may incarcerate individuals without filing formal charges. The Writ of Habeas Corpus is used to bring a prisoner or other detainee before the Court to determine the legality of the custody and decide whether to order the prisoner’s release. The Writ is useful for checking on the manner in which States or the Federal Government respect an individual’s constitutional rights.

The individual being held in custody, or his or her representative, can petition the Court against the State or Federal agent. The Habeas petition must show that the Court ordering the detention made a legal or factual error. Filing a petition is a legal challenge to the Government’s ability to detain an individual. If the petitioner can meet the burden with enough evidence, the burden later shifts to the warden to justify the imprisonment.

Petitions are usually filed by people serving prison sentences, must be in writing and must name the custodian as the respondent. However, the current use of Habeas corpus includes cases involving extended detention of illegal immigrant or lawful permanent residents convicted of a crime.

If you or a loved one are unlawfully detained, or will suffer collateral immigration consequences due to a criminal conviction, speak to an experienced criminal immigration lawyer to determine whether a Writ of Habeas Corpus can be filed on your behalf.

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