Habeas Corpus

Generally speaking, the writ of habeas corpus is available in any case where the trial court has acted in excess of its jurisdiction. (In re Zerbe (1964) 60 Cal.2d 666, 667.) For purposes of the writ of habeas corpus, “the term `jurisdiction’ is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court’s powers as defined by constitutional provision, statute, or rules developed by courts. [Citations.]” (Id., at pp. 667-668.)

A writ of habeas corpus ad subjiciendum, also known as “The Great Writ”, is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.  The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject.

Insofar as the format of the petition is concerned, there are four essential components: (1) the pleading; (2) the verification; (3) the points and authorities; and (4) any supporting exhibits.

In order to seek investigative or expert fees, counsel must file an ex parte motion. The motion must specify the lines of inquiry which the investigator or expert will pursue. (People v. Faxel (1979) 91 Cal.App.3d 327, 330.) The showing must be as specific as possible. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 320.)

Habeas Petition compared to Appeals

It is important to understand the difference between an “appeal” and a “petition for writ of habeas corpus.”  An appeal follows the trial.  Every criminal defendant is entitled to appeal if they are convicted of one or more felony charges.  All that is necessary is that they file a Notice of Appeal before the deadline and retain an appellate lawyer.

Petitions for writ of habeas corpus are not “tied” to the defendant’s trial.  Different rules apply.  They can be filed at any time so long as the defendant is in custody (either in jail or on parole/probation) and can show his constitutional rights were violated.  Most habeas petitions are filed after the appeal is finished but they can also be filed before or at the same time as an appeal.

Why File a Habeas Petition?

There are limits to what can be raised in a “normal” appeal.  For example, one must rely solely on the record.  This means that the appellant can only use documents, exhibits, and testimony that the judge and jury saw.  Nothing new can come in.  The record is put together after a defendant files a notice of appeal.  It is then sent to the Court of Appeal and they use it (and the parties’ briefs) to make their decision.

When you file a habeas petition you can use evidence that is not in the record on appeal.  For example, if a new witness comes forward or a new document is discovered you can use it when you file your habeas petition.  We encourage clients to file habeas petitions when they believe the court would have decided the case differently if it would seen or hear this “new” evidence, or if the defense attorney at trial made really bad mistakes that led to a guilty verdict (that is, ineffective assistance of counsel).

Must a Defendant File an Appeal Before Filing a Habeas Petition?

You are not required to file an appeal before filing a habeas petition.  However, keep in mind that a defendant cannot file a habeas petition in place of an appeal.  If a defendant wants to appeal something that is reflected in the record – like a bad evidentiary ruling or faulty jury instruction – it MUST be raised on appeal.  If the defendant misses the deadline to appeal there is no way to challenge those things later.  A petition for writ of habeas corpus cannot be used to challenge things that could have been challenged on appeal.  Habeas petitions can only be used to raise things that occurred outside of the record.

Examples of things that must be raised on appeal:

–       Evidentiary rulings: judge should or should not have allowed certain evidence to be admitted at trial; incorrect ruling on a motion in limine.

–       Prosecutorial misconduct in the courtroom: the prosecutor says things in front of the jury that he should not have.

–       Incorrect jury instructions: the judge gave the jury inaccurate or incorrect instructions before they deliberated.

–       Ineffective assistance of counsel on the record: defense attorney fails to cross-examine witnesses or otherwise screws up in a way that is evident on the face of the record.

Examples of things that would have to be raised in a habeas petition:

–       New witnesses come forward who would not have/could not have testified at trial.

–       Prosecutorial misconduct outside of the record, such as concealing evidence or witnesses

–       Ineffective assistance of counsel, outside of the record: defense lawyer failed to adequately investigate before trial, or had a major conflict of interest.

What is Involved If You Decide to File a Habeas Petition?

In most situations we encourage clients to hire an investigator to find new evidence.  We then take the results of the investigation and decide whether there are grounds to file a habeas petition.  If yes, we begin preparing several documents:  (1) the habeas petition, which sets forth the factual and legal bases in a “bare bones” fashion; (2) a memorandum of points and authorities, which expands on the legal arguments; and (3) the supporting exhibits, which includes all documents supporting the petition.  The supporting exhibits might be documents from inside and outside the record.  They could be police records; statements and/or declarations of witnesses; lab results; photos.

We will then file these documents in the Superior Court in which the defendant was convicted.  This is generally what happens next:

–       The court has 60 days to either deny the petition outright, or order the DA to respond to the habeas petition.

–       After the DA files its response the court can deny the habeas petition, or schedule an evidentiary hearing so that both sides can present their case (like a mini-trial).

–       If an evidentiary hearing takes place, the court can deny the petition or – if the defendant convinces the judge that his or her rights were violated — order some type of relief for the defendant.  This could include release, a new trial, a partial new trial, a sentence reduction, etc.  New trial is the most common remedy.

If the Superior Court denies the habeas petition you can then file it in the State Court of Appeal, then the State Supreme Court.  If it involves violations of the U.S. Constitution, a defendant can then file the petition in Federal District Court, then the Federal Court of Appeals, then the United States Supreme Court.  This process can take three to five years.


You can start working on a habeas petition right away or wait until the appeal is concluded.  However, no matter what you decide, we recommend you hire an investigator to begin looking for evidence that may support a habeas petition.  This is especially important because memories fade and people move locations as time passes.

Palmer Investigative Services has provided assistance in locating evidence of:

  • Prosecutorial misconduct
  • False testimony by police officers
  • Falsification of evidence by police and crime labs
  • False confessions
  • Juror misconduct
  • Judicial error and misconduct
  • Ineffective assistance of counsel
  • Many other issues of interest in Habeas cases