Writs of Habeas Corpus: Definition, How to File, and More

We always see on either the latest crime drama or the latest documentary crime series people discussing “Habeas Corpus”, but what does it really mean in terms of criminal law and post conviction relief?

Convicted defendants can ask the court for post-conviction relief if they have been convicted of a crime. There are several avenues that a convicted defendant can take including requesting a motion for a new trial, an appeal, and a writ of habeas corpus.

Writs of Habeas corpus are only used after all of other avenues of post conviction relief have been exhausted.

What Is Habeas Corpus?

“Habeas Corpus” is a Latin phrase that literally means “you shall have the body”.

The body literally means the body of someone who is in custody because they have been arrested or convicted of a crime.

Secsltion 1 of the 14th Amendment of the United State Constitution is where the right to Habeas Corpus exists.

The foundation originates with the due process clause of the 14th amendment.

The first section of the 14th Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law.”

So if a defendant’s imprisonment does not conform with fundamental constitutional rights such as due process, the courts are required to order the person to be released from custody immediately.

Writs of Habeas Corpus are rarely granted; only less than 10% of the petitions filed with the court are granted.

Who Can Petition for Habeas Corpus in Nevada

To file a Writ of Habeas Corpus you must believe that the following are true:

  1. You detention (prison or jail sentence) by the justice system was unlawful, or
  2. Your conviction violate your constitutional rights, or
  3. Your sentence was improperly computed

You must meet the two following requirements before you can file a petition for habeas corpus.

  1. You must be in custody when your petition is filed, and
  2. You must have been denied on appeal or the time for an appeal has expired

What Are the Grounds for Habeas Corpus in Nevada

There are nine different reasons that you can file a Writ of Habeas Corpus in Nevada.

NRS 34.500 states that the nine basic conditions under which a Nevada petition for Habeas Corpus may be granted are:

  1. When the jurisdiction of the court or court officer has been exceeded
  2. When being imprisoned was first a lawful act, by some act or event after the fact the petitioner has been entitled to be released
  3. When the process is defective in some matter of substance required by law making confinement void
  4. When the process, though proper in form, has been issued in a case not allowed by law
  5. When the person being detained is not allowed to be detained by that person
  6. Where the process is not authorized by any judgment, order or decree of any court, not by any provision of law
  7. Where someone has be indicted or commute on a criminal charge including a misdemeanor without probable cause
  8. Where someone has been charged or indicted for a crime and the statute is unconstitutional
  9. Where the court finds that there has been a specific denial of the person’s constitutional rights with regard of the person conviction or sentence in a criminal case

You may also file a writ of habeas corpus if you have been wrongfully denied bail before a conviction.

How to File a Writ of Habeas Corpus

You can file a Writ of Habeas Corpus on your own, and a lot of convicted defendants do try.

But it is recommended that a post-conviction legal expert fill out a Writ of Habeas Corpus to avoid any delays and mistakes that could get your writ thrown out.

Your petition must include:

  • Your imprisonment or you are being restrained from liberty
  • The place where you are imprisoned
  • The persons who are restraining you by name if known or by description
  • If the basis for your petition is illegal restraint or detention, the facts which support your allegations
  • If your petition is a request for relief from criminal judgment, an identification of the origins court proceedings that you were convicted in including:
  • The date of final judgment
  • Any previous post conviction relief proceedings
  • What constitutional rights were violated
  • The acts that violated your constitutional rights

Your petition should include any supporting evidence, if the evidence is not available to you an affidavit as to why the evidence is not included.

Your petition must also conform to NRS 34.735. If it does not, it may be rejected on those grounds.

After you or your defense attorney has completed the petition, several copies must be mailed to the following:

  • The clerk of the district court in the county you were convicted in
  • The person’s who are reasonable for detaining you
  • The Attorney General’s Office
  • The District attorney of the county you were convicted or the original prosecutor if you are challenging your original conviction or sentence

Once all parties have received copies of the petition for a writ of habeas corpus, things will be moving forward fast.

Judges are required by law in Nevada to examine petitions for Habeas Corpus expeditiously.

If the petition challenges the validity of a judgment of conviction or sentence or if this is the first petition you filed, the judge will request the district attorney or Attorney General to review or respond within 45 days.

A judge will review all the documents and evidence to determine whether a hearing is required

If it is determined that there might be merit to your claim the judge will:

  • Grant the writ
  • Set a date for a hearing

If the petition is not granted the judge will dismiss your petition without a hearing also known as a summary dismissal.

What Are Reasons for Dismissal of a Petition of a Writ of Habeas Corpus

Writs of Habeas Corpus are rarely granted and the reasons for denial of the petition include:

  • The original conviction was part of a plea deal, or guilty but mentally ill. There Is no evidence that these were not reached involuntarily
  • The conviction was the result of a trial and the grounds for the petition could have been presented at trial
  • The grounds of the petition could have been raised on appeal or other post conviction relief.

In simpler terms, your Writ of Habeas Corpus will not be granted if you could have raised the issue in the petition in another preceding prior to the writ being filed.

Your writ may be granted, on the other hand, if the court finds that:

  1. Reasonable cause for your failure to present such grounds, such as ineffective counsel; and
  2. Actual prejudice to you

What if I Win My Petition at a Hearing

If you win the petition for a Writ of Habeas Corpus and the judge finds there are no legal grounds for you to be imprisoned you will be immediately released from custody.

You cannot be further:

  • Imprisoned
  • Restrained or
  • Kept in Custody

…for the same crime.

Unless you are arrested for or committed the same offense by legal process.

Habeas Corpus and The Death Penalty in Nevada

If you are on death row and are filing your first Writ of Habeas Corpus challenging the conviction and sentence, the court will:

  1. Appoint counsel to represent you if you do not already have legal counsel
  2. A stay of execution pending the disposition of the appeal or writ

If you have been given an execution date, your petition must include your date of execution and the following:

  • Why the issues in your writ were not determined at prior post conviction relief
  • Why other relief was inadequate

In order to get a stay of execution you must:

  • Actually file a petition for a habeas corpus, and
  • Establish a compelling basis for the stay

Call The Defenders for Help

The Defenders have a team full of experts on staff.

Filing a motion for a new trial or an appeal of your conviction—whatever form of post-conviction relief you seek we have an expert on staff that can help you with any post-conviction relief applications.

Our team will advise you as to what you need to do and what options are available for your particular case.

For example, there is no reason to apply for a Writ of Habeas Corpus if you have not tried to get a new trial first.

Writs of Habeas Corpus are only for after all other post conviction relief options have been brought to the court.

All post-conviction relief cases can be difficult to file and one wrong move including failure to fill out paperwork properly can result in a dismissal of your case without any relief.

Hiring an experienced lawyer with post-conviction relief experience is your best option.

If you or someone you know is incarcerated and needs help filing a Writ of Habeas Corpus or any other post-conviction relief proceedings. Contact The Defenders today to get started. Our expert team can help you navigate the complex legal requirements for these cases so that you can get the best possible outcome.

Contact us today for a free consultation.

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