*Case Law Ltd. Extern and Cornell Law School Student, Class of 2024
A writ of habeas corpus is a legal petition that a person in custody can bring to contest the legality or condition of their custody. The California Penal Code suggests a broad scope for habeas corpus: “Every person unlawfully imprisoned or restrained of his liberty, under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of his or her imprisonment or restraint.” Cal. Pen. Code, § 1473, subd. (a).
Am I in Custody?
If a person is in state prison, county jail, or juvenile detention; committed to a state hospital as a Mentally Disordered Offender; or on conditional releases such as parole and probation, the person is in custody. See In re Qawi, 32 Cal.4th 1, 12-13 (2004) (MDO); In re Jones,57 Cal.2d 860, 861, fn. 1 (1962) (parole); In re Hochberg, 2 Cal.3d 870, 874, fn. 3 (1970) (probation).
For what types of issues can I file a writ of habeas corpus?
There are two main types of issues for which one can file a writ of habeas corpus:
- To contest a court decision such as a criminal conviction, sentencing, or parole; or
- To contest a prison or parole condition or policy.
For the first main type of issue, specific claims that might be appropriate for habeas corpus relief include but are not limited to:
- Ineffective assistance of counsel.
The petitioner must show that (1) the attorney’s performance fell below an objective standard of reasonableness under professional norms; and (2) there is a reasonable probability that but for the attorney’s errors, the result would have been more favorable to the petitioner. See Strickland v. Washington, 466 U.S. 668, 688-94 (1984). This claim can help overcome the state’s argument that an issue was forfeited because no objection was made during the original proceedings.
- False evidence was introduced against the person at a hearing or trial. See Cal. Pen. Code, § 1473, subd. (b).
- Newly discovered evidence of fraud or misconduct by a government official. See Cal. Pen. Code, § 1473.6, subd. (a).
This includes Brady’s claims. Brady requires that the prosecution disclose exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment of a defendant. See Brady v. Maryland, 373 U.S. 83 (1963).
- Involuntary guilty plea.
The petitioner must show that they did not understand the plea and that they would not have entered the plea if they had understood it and its consequences. See In re Moser, 6 Cal. 4th 342 (1993).
- The trial court entered a conviction or sentence that was not authorized by the law. This includes but is not limited to:
- unconstitutionally cruel and unusual sentence, see In re Lynch, 8 Cal.3d 410 (1972);
- conviction based on an overbroad interpretation of the statute, see In re Kay, 1 Cal.3d 930 (1970);
- conviction that violated statute of limitations, see In re Demillo, 14 Cal.3d 598 (1975);
- sentence imposed for crime that was not charged or proven, see In re Hess, 45 Cal.2d 171 (1955);
- erroneously calculated sentence term, see In re Haygood, 14 Cal.3d 802 (1975).
- A change in the law.
Not all changes in the law apply retroactively. The default is that a new law only applies retroactively to cases that are not yet final on appeal. See Tapia v. Superior Court, 53 Cal.3d 282, 301 (1991). One should assume that they do not apply to cases that are already final unless specified in the statute. From the past decade, notable examples of statutes with the retroactive application include but are not limited to SB 1437 (accomplice liability for felony murder) and SB 9 (for youth sentenced to LWOP).
Note that for the second main type of issue, one must exhaust all administrative remedies before filing a habeas corpus petition. A later section in this article will explain how to do so. For the first main type of issue, there is no need to exhaust all administrative remedies.
For contesting my conviction/sentencing, what is the difference between habeas corpus and direct appeal?
If the issue was or could have been raised in a direct appeal, they usually cannot be raised on a habeas corpus petition. See In re Harris, 5 Cal.4th 813, 829 (1993). Therefore, habeas corpus is most appropriate when new information has been discovered or when there has been a change in the law. The habeas corpus petition cannot act as a second direct appeal; to raise an argument based on the same legal grounds as the first direct appeal, the petitioner must rely on evidence that was not present in the original proceeding or first direct appeal.
For contesting prison conditions/policies, how do I exhaust all administrative remedies?
To exhaust all administrative remedies, one must file (or at least attempt to file) an administrative appeal such as a Form 602 (for most issues), 602- HC (for health care), or 1824 (for disability accommodation) to the highest level, namely through the Directors or Third Level of Review.
The administrative appeal must be specific enough to give prison officials fair notice of the nature of the complaint. Also, the appeal should be submitted and re-submitted within the timelines set by the CDCR regulations (usually within 30 calendar days after the event or decision being appealed or after an unsatisfactory First or Second Level decision). It is helpful to keep a copy of every decision made by the administrative board and attach them to one’s habeas corpus petition.
If the petitioner does not have enough evidence to show that he has exhausted available administrative remedies, he will not be allowed to proceed with a habeas corpus petition. The court might grant exceptions in cases such as when the issue fell outside the scope of matters covered by the grievance procedure, or when taking the time to exhaust all administrative remedies would cause the petitioner an unreasonable risk of irreparable harm. See Glendale City Employee’s Assn., Inc. v. City of Glendale, 15 Cal.3d 328, 342-43 (1975) (outside the covered scope); In re Serna, 76 Cal.App.3d 1010, 1014-15 (1978) (risk of irreparable harm).
Can I use habeas corpus to challenge a Board of Parole Hearing (“BPH”) decision?
You can also use a habeas petition to challenge a BPH finding of unsuitability for parole or to challenge an unlawful condition of parole. See In re Lawrence, 44 Cal.4th 1181 (2008); In re Taylor, 60 Cal.4th 1044 (2015).
For BPH decisions, there is usually no administrative appeal process and thus so administrative remedies to exhaust, except for issues including but not limited to:
- disability-accommodation-related BPH issues, in which case one should file Forms 1073- and 1074- BPH.
- challenging denials of non-violent offender (Prop. 57) parole. For Prop. 57 denials, one can either directly appeal the denial or file a habeas corpus petition. The two options undergo similar analysis in court, but habeas corpus moves faster, while the appeal might take more than a year, so by the end of the appeal, the petitioner would have received a new BPH decision, rendering the issue moot. Overall, it’s a very high bar to show that Board of Parole acted arbitrarily in denying claim.
For contesting prison conditions, should I file a writ of habeas corpus petition or a 42 U.S.C. § 1983 lawsuit?
If the goal is to obtain money damages for personal injuries, one can file a federal civil rights (“section 1983”) lawsuit, a state tort lawsuit or a small claims lawsuit (for damages of less than $10,000). One cannot obtain money damages through a writ of habeas corpus, and can only obtain an order to be released or an injunction on the contested prison/parole condition.
What is the timing and timeline regarding a writ of habeas corpus petition?
There is no deadline for filing a writ of habeas corpus petition, but a court can deny one’s petition if it finds that there was a “substantial delay” in filing. See In re Reno, 55 Cal.4th 428, 459 (2012). For example, if there is a change in the law that applies retroactively, one should file the habeas petition based on the new law within a reasonable time after the date on which the change in law took effect. The Supreme Court has recently held that 120 days is a reasonable period of time. See Robinson v. Lewis, 9 Cal. 5th 883, 901 (2020). It is not an absolute deadline, but a safe harbor, meaning that delay beyond 120 days would be subject to analysis of whether it constituted “substantial delay” and whether the petitioner had good cause for the delay. Ibid.
After the habeas corpus petition is filed, the court must rule on the petition within 60 days. See California Rules of Court, rule 4.551. The court does so by one of the three following ways:
- Issuing an order to show cause;
An order to show cause is a determination that the petitioner has made a showing that he or she may be entitled to relief. It does not grant the relief sought in the petition. If an order to show cause is issued, the respondent may file a return within 30 days. The petitioner then has 30 days to file a denial. Within 30 days after the deadline for denial, the court must either grant or deny the relief sought or order an evidentiary hearing.
- Denying the petition; or
- Requesting an informal response to the petition.
Within 45 days after receipt of the informal response, the court must issue an order to show cause or deny the petition.
Note that the petitioner does not have an automatic right to the appointment of counsel. However, on issuing an order to show cause, the court must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel.
How exactly do I file a writ of habeas corpus petition?
Judicial Council Form HC-001: www.courts.ca.gov/documents/hc001.pdf
What is the difference between habeas corpus in-state versus federal courts?
Unlike state habeas corpus, federal habeas corpus has strict timelines. A federal habeas petition usually must be filed within one year of either: 1) the conclusion of the state court review; 2) the date that an unconstitutional impediment to filing was removed; 3) the date a newly recognized retroactive right was recognized by the Supreme Court, or 4) the date that the facts behind the claim “could have been discovered” through “the exercise of due diligence.” 28 U.S.C. § 2244, subd. (d)(2). If the petitioner has an “unreasonable” delay in bringing the state habeas petition or in filing the state petition to the next court level, it might bar their federal habeas petition.
Federal habeas petitions are used for more limited purposes than state habeas petitions. For example, a federal habeas writ can only be granted for violations of the Constitution or of “clearly established Federal law, as determined by the Supreme Court;” or for “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254, subd. (d). It is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 4 (2010).
Moreover, there currently exists no absolute right to appointment of counsel in federal habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice so require.”