If you have been convicted of a crime in California…and have tried and failed to overturn your conviction on appeal…you may think that this means you have no choice but to accept your conviction and serve your sentence.

But, in fact, that’s not true. There is one more tool that you may use to challenge your conviction: the writ of habeas corpus petition.

“Habeas corpus” is a Latin phrase that means, “that you have the body.” 1 The “body” in the phrase means the body of someone who is in state custody because they allegedly committed a crime.

In California, anyone who is in prison, or otherwise restrained in some way by the criminal justice system, can bring a writ of habeas corpus petition to challenge their imprisonment.2 The right to do this is guaranteed by the California Constitution.3 Traditionally, the writ of habeas corpus has been known as the “Great Writ.” For centuries it’s been the last hope for justice for people who have been wrongly imprisoned.4

That’s the good news. The bad news is that it’s not easy to get a conviction overturned by using a habeas corpus petition. If the jury simply got it wrong and found you guilty when you were innocent, the writ of habeas corpus probably won’t help you in California.5 But it CAN help you if something went very wrong at your trial…like a prosecutor introducing false evidence, 6 or your trial lawyer being incompetent.7

Even if you’re not challenging your conviction, you can still bring a writ of habeas corpus in California to challenge the conditions under which you’re serving your sentence.8 Because of how common jail and prison abuse are in California state prisons, the writ of habeas corpus plays an important part in protecting prisoners’ rights.

In this article, our experienced California criminal defense attorneys9 explain California habeas corpus petitions by addressing the following:

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. Requirements before you can bring a habeas corpus petition

A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy” — that is, it’s supposed to be used only in extreme and unusual circumstances.10 Because of this, the best way to understand it is to first understand the important limits on when and how it can be used.

1.1. Petitioner must be “in custody”

You can only bring a habeas corpus petition if the state has you in custody…if, because of criminal charges or a criminal conviction, your ability to move around freely is restricted.11

So, of course, you can bring a writ of habeas corpus petition if you are in

state prison or county jail. But you can also bring a habeas corpus petition if you are:

Out on parole or probation (because both parole and probation involve restrictions on a person’s liberty), 12

Out on bail, 13 or

or Released on your own recognizance while charges are pending.14

1.2. Exhaustion of remedies

As a general rule, you can’t file a petition for habeas corpus unless you’ve done something that judges call “exhausting your remedies.” What this means is that you have to try every other solution that the system makes possible for you before you can try a writ of habeas corpus.15

What this means in practice is that you have to file all possible appeals of a California criminal conviction before you can try a writ of habeas corpus.16

Example: Rick is sentenced to an extremely long prison term under California’s three strikes law. He immediately files a habeas corpus petition in which he raises a number of objections to his conviction and sentence. But the petition will be rejected because he did not first file a standard appeal.

Not only that, but you have to appeal on the same basis on which you will file your habeas corpus petition.17 In other words, any arguments that you make in your habeas corpus petition also need to have been made in your appeal.

1.3. Issues already resolved on appeal

Also, in California, courts usually won’t consider a habeas corpus petition that is based on issues that were already considered and resolved on appeal.18

In other words, if you appealed your conviction arguing that the jury selection process was flawed, and the appeals court ruled against you, you can’t then file a successful habeas corpus petition arguing that the jury selection process was flawed. This rule is known as the “Waltreus rule,” after a case in which it was first declared. 19

This may make you scratch your head. We just explained above that you can’t file a California habeas corpus petition based on an argument that you didn’t first raise in an appeal.

Now we’re saying that if you lost on your argument on appeal, you can’t win on it in habeas corpus either. Of course, you wouldn’t be trying habeas corpus at all if you had won on appeal (because if you’d won, you’d probably be out of prison already). It may sound like you’re “damned if you do, damned if you don’t.”

The reason habeas corpus petitions can be helpful in spite of this dilemma is that California courts have carved out a number of exceptions to these rules. If certain kinds of things went wrong with your trial or conviction, then you can win on a habeas corpus petition even if you didn’t file an appeal on the issue, or if you lost on appeal.

Because these exceptions are limited, there are really only a limited number of issues on which it makes sense to base a habeas corpus petition. We’ll discuss those issues now.

2. Grounds for habeas corpus petitions in California

As we just explained, California law is such that you can really only bring a successful writ of habeas corpus on the basis of certain issues. Here is a list of the most important of these issues.

2.1. Conviction under unconstitutional law

You may be able to get relief through the writ of habeas corpus in California if you can show that the criminal law under which you were charged and convicted is unconstitutional. 20

It’s rare for a court to find a law unconstitutional, but it does happen…usually because the law is too vague, or because the law violates a fundamental right guaranteed under the U.S. Constitution or the California Constitution.

Example: As part of a subversive “fashion show” at a restaurant, Jeanne bares her breasts in public. She is arrested and convicted under a law that makes it a crime to violate standards of “public decency.” She files a habeas corpus petition and is released…because the law under which she was convicted is too vague and therefore unconstitutional.21

2.2. Ineffective assistance of counsel, or no lawyer provided

One of the most common reasons courts grant writs of habeas corpus is because a defendant did not have a competent lawyer at their trial and/or their appeal. This is what is known as an “ineffective assistance of counsel” claim.

You can argue ineffective assistance of counsel in a habeas corpus petition even if you didn’t make that argument in a criminal appeal.22 This makes sense because, if you had an incompetent lawyer, there’s a chance that he or she wouldn’t even have told you that you needed to file an appeal. Also, he or she almost certainly wouldn’t have helped you to make an “ineffective assistance of counsel” argument on appeal!

But in order to get a writ of habeas corpus because your trial lawyer was incompetent, you also need to show that the result in the trial might have been different if you had had a better lawyer.23 In other words, you need to show that your trial lawyer made mistakes that may have made a difference to the verdict, or to your decisions about how to plead to charges.

Example: Billy’s lawyer at his criminal trial told him that the maximum sentence for the crime with which he was charged was thirty-eight (38) years. Billy decides to plead “no contest” to the charges and gets a prison sentence of twenty (20) years instead. Later, Billy finds out that his first lawyer was wrong, and the maximum sentence was only twenty-seven (27) years. So instead of saving 18 years by pleading no contest, he only saved 7 years. If Billy had known the actual maximum sentence, there’s a good chance he would have taken his chances at trial rather than pleading no contest. His lawyer’s bad advice made a difference to the outcome. Thus, his habeas corpus petition may be granted, and he may be released from prison.24

It is also possible to get a habeas corpus petition granted if you did not have the money to pay for an attorney and were not given one by the state…or if you were not told that you had a right to get one from the state.25

2.3. Prosecutor’s misconduct

Habeas corpus petitions may also be granted in cases involving prosecutorial misconduct in California26…something which unfortunately is all too common.

Your habeas corpus petition may be granted if the prosecutor at your trial engaged in certain kinds of bad behavior. These include:

Presenting false testimony in court,

Withholding key evidence that was favorable to your case,

Presenting false evidence that prompted you to decide to plead guilty, and

Making false statements to the jury.27

2.4. Incompetency during trial

California law provides that a person can’t be tried for a crime while they are insane or otherwise incompetent. This is the concept of “competency to stand trial.”

Habeas corpus petitions may be granted on the grounds that the defendant was not competent when he was tried for the crime.28

As with ineffective assistance of counsel, it makes sense that this is considered a legitimate basis for a habeas corpus petition. Habeas corpus petitions exist to correct the kinds of mistakes in the criminal trial process that the appeals process wouldn’t catch. If a defendant didn’t have a competent attorney, or was himself insane during the normal process, there’s a good chance justice wasn’t done at either the trial or the appeals stage.

2.5. Newly discovered evidence

Another common reason courts grant habeas corpus petitions is that new evidence is discovered after the trial and the appeals process are over.29

But because it’s very rare that all evidence is uncovered during the trial…and therefore very common for new evidence to come to light after the verdict…courts have put strict limits on the kind of new evidence that can justify a habeas petition. California courts have held that the new evidence has to either:

indicate with total certainty that the defendant is innocent, or completely undermine the entire structure of the prosecution’s case.30

Example: Will is convicted of murder. He files multiple appeals and loses on all of them. Years later, someone else comes forward and confesses to having killed the person Will was supposed to have killed. This is enough for a court to grant Will’s habeas petition and release him from prison.31 BUT Example: Jerome is convicted of bribery. The key witness for the prosecution in Jerome’s trial was Tom. Later, someone named Andy comes forward and says that Tom told him that he had lied at the trial and framed Jerome. Tom denies that this is the case. Because it’s Andy’s word against Tom’s, the new evidence (Andy’s story) doesn’t indicate for certain that Jerome is innocent. So Jerome’s habeas corpus petition isn’t granted.32

2.6. Changes in the law

Another valid basis for a habeas corpus petition is a change in the law since the time you were convicted or lost on your appeal.33

This too makes sense, given the purposes of habeas corpus-if the law was such that you were guilty at the time of your trial or appeal, and now is such that you would be innocent, you will need another method outside of the appeals process to challenge your conviction.

Example: Rachel uses marijuana for medical purposes, with her doctor’s recommendation, and cultivates her own. She is arrested and convicted for cultivation of marijuana; she appeals her conviction but loses. Then California voters pass the Compassionate Use Act, aka the medical marijuana law, under which Rachel’s actions may be legal. Rachel may be able to file a successful habeas corpus petition and get released from jail…if she can show that the change in law means that what she did is no longer a crime in California.

2.7. Evidence regarding battered woman’s syndrome

The California legislature has specifically provided that prisoners can file habeas corpus petitions in order to introduce scientific expert testimony about the syndrome popularly known as “battered woman’s syndrome.” Basically, this syndrome consists of the psychological effects of domestic violence by a spouse or other intimate partner.34

This is only a valid reason for a habeas corpus petition in certain specific circumstances, however. These include:

Evidence on the effects of domestic partner abuse was not introduced at the original trial, 35 The conviction was for a violent felony like murder,

voluntary manslaughter, mayhem, attempted murder, or kidnapping, 36 The crime was committed before August 29, 1996, 37 and It’s reasonable to expect that introducing expert testimony on battered women’s syndrome would have changed the outcome of the original trial.38

2.8. Challenging conditions of confinement

Finally, another common use of habeas corpus petitions is not to challenge a person’s conviction for a crime…but instead to challenge the conditions under which they are serving their prison sentence.39 This use is especially important, given the horrendous conditions inside many California prisons today, with jail and prison abuse increasingly widespread.

According to Beverly Hills criminal defense and civil rights attorney Neil Shouse:40

“Prison inmates do have civil rights, even though they’re more restricted than the rights of people on the outside. If you’ve been the victim of abuse or medical neglect in prison…and the processes that the prison system provides for challenging these conditions are not helping you…a habeas corpus petition may be a logical next step.”

3. Timeframe for bringing a California habeas corpus petition

For all the reasons we just discussed, a California habeas corpus petition is a much more limited remedy than a normal appeal.

However, there is one major way in which a habeas corpus petition is a more flexible tool than an appeal: timing. There are strict timeframes and deadlines to appeal a criminal conviction in California. In contrast, there are no strict deadlines for filing a habeas corpus petition…as long as it is filed while you are in custody.

However, you are not supposed to delay filing a habeas corpus petition for too long…and if you do delay, you’ll have to justify the delay in your petition.41 But any “delay” is measured from the time you find out that you have a good reason to seek habeas corpus relief.42 This can be the day you’re convicted…or it can be years later.

So, for example, if you find out ten years into your prison sentence that someone else has confessed to the crime you are supposed to have committed, you can challenge your conviction through habeas corpus…even though the deadlines for filing appeals will have long since passed.

4. Procedure for obtaining a writ of habeas corpus in California

Habeas corpus petitions go through the courts. But the procedure surrounding them is different from the normal California criminal court process.

You start by filing a petition that sets forth the grounds for relief. You should attach any reasonably available documents that will help your case.43

If there are any questions of fact involved with your petition, the general rule is that you file first in a California superior court. If it is rejected, you may “move up” to courts of appeal and maybe even the California Supreme Court.44

After you file your petition, the judge will make an initial decision on whether you might be entitled to have the petition granted if all the facts you allege in the petition are true. If the answer is no, the petition will be dismissed then and there.45

But if the answer is yes, then the jailer has to file an answer to your petition (this is called a “return”).46 You then file an answer to that answer (called a “traverse”).47

If there are any facts that are in dispute, then the court will hold a hearing in which evidence is presented. Otherwise, the court will simply rule based on the documents that were filed.48

5. Federal writ of habeas corpus

5.1. For state prisoners

The harsh truth is that most California petitions for habeas corpus don’t succeed. But if you are in custody for a California crime and your California habeas corpus petition fails, you are not completely out of options. There is also the possibility of filing a habeas corpus petition in federal court.

Unfortunately, federal law takes a very strict approach to habeas corpus petitions challenging state sentences.

First, you can only get federal habeas corpus relief if you can show that your conviction or custody violated either the United States Constitution or federal law.49 In other words, you can’t challenge your conviction on the basis of California state law in federal court.

Second, in order to get relief through this route, you will need to show that you have exhausted all remedies available in California (meaning, you have tried both regular appeals and all possible habeas corpus petitions in California courts).50 But you may be able to avoid this requirement if you can show that there was some reason why those state processes were not able to protect your rights.51

And, finally, federal courts won’t grant a petition unless it’s clear to them that the state courts made a really large and obvious mistake in dealing with your claim. The California courts’ decision on any of your claims won’t be overturned unless it was either

contrary to clearly established federal law, as determined by the Supreme Court of the United States (not by other federal courts), or based on a completely unreasonable determination of the facts in light of the evidence.52

This is a hard hurdle to get over…but it’s not an impossible one. State courts make mistakes all the time, due to overwork or the political factors influencing how prosecutors and judges handle criminal cases. Very few federal habeas petitions challenging state sentences are granted…but worthy petitions still have a good shot at leading to some relief.

5.2. For federal prisoners

If you are in federal prison serving a sentence for a federal crime, you will file any habeas corpus petition in federal court (rather than California state court).53

But federal habeas corpus law for federal prisoners is a bit different than for state prisoners, in that a strict deadline applies for filing a petition. You need to make sure that your petition is filed within one (1) year after the latest of:

the date when your conviction becomes final, the date on which the law changes to provide you with a basis for challenging your conviction or sentence, OR the date on which the facts (like new evidence) on which you base your petition could have been discovered through reasonable efforts (even if this is earlier than when you actually discovered them).54

Contact us for help…

If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

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