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    Criminal Defense Division

    Habeas Corpus California – A Plan to Get Your Loved One Out

    A habeas corpus petition in California allows you to challenge your conviction or sentencing. You can file it only after exhausting all criminal appeals, and the petition must show your detention violates the law or your constitutional rights as per Penal Code 1473.

    If your habeas corpus petition is granted, the court may order your release, reduced charges, a new trial, or a modified sentence. If the court denies your petition, then you can seek alternative relief by filing a habeas corpus petition in federal court.

    Our California criminal defense attorneys will address the following in this article:

    1. What is a habeas corpus?

    Habeas corpus is a legal instrument that allows you to contest your incarceration, conviction, or sentencing conditions. After receiving the petition for writ of habeas corpus that we file on your behalf, the judge will command the prison warden to present you in court so they can determine the legality of your confinement.

    The California Constitution guarantees your right to habeas corpus,2 which is considered an “extraordinary remedy” because its use is reserved for exceptional and atypical situations.1 Consequently, habeas corpus is usually the last resort for challenging a conviction or jail/prison sentence after we have pursued and exhausted all other appellate options.3

    Attorney arguing a writ of habeas corpus case in front of judicial panel

    A centuries-old legal remedy, habeas corpus stems from the Latin phrase “you should have the body.”

    2. What is the process for bringing a habeas corpus petition?

    If you are convicted of a crime, we would file a habeas corpus petition with the district court – typically the California Superior Court. The three requirements we must meet for the court to issue the writ of habeas corpus are:

    1. you must be “in custody,” which means you are either in state prison or county jail or out on parole, probation, bail, or released on your own recognizance; 4
    2. we must have exhausted all possible remedies (such as appeals);5 and
    3. the issues raised in the petition must be new or unique to those raised in appellate courts.6

    As to this last requirement, legal claims previously raised and rejected on direct appeal ordinarily cannot be reraised in a petition for a writ of habeas corpus. However, there are exceptions we may be able to take advantage of.7

    2.1. Deadlines to file

    Note that there are no strict deadlines or time limits (“statute of limitations”) for when you must file a writ of habeas corpus. California’s criminal laws state that you must file a writ:

    • when you are in custody, and
    • in a “timely” manner (as determined by the facts of the case).8

    In our experience, we have the most success the sooner we can file your petition.

    2.2. Habeas corpus in Los Angeles County

    In Los Angeles County, the District Attorney’s Office has a Habeas Corpus Litigation Unit (HABLIT) whose mission is to investigate every potentially meritorious claim under California law. Currently, the D.A.’s office is very pro-defendant.9

    3. What are the grounds for a writ of habeas corpus?

    When we draft your petition for a writ of habeas corpus in California, we typically have to raise one of the following issues/constitutional errors (and provide supporting facts) to succeed:

    1. you were convicted under a law that is unconstitutional,10
    2. you did not have a competent lawyer (or no lawyer was provided), also called ineffective assistance of counsel,11
    3. there were instances of prosecutorial misconduct,12
    4. you were incompetent to stand trial,13
    5. false evidence was presented,
    6. there was improper jury selection,
    7. new evidence was discovered showing your innocence or more likely than not would have affected the outcome of the case,14
    8. there have been changes in the law since you were convicted in trial court,
    9. you suffer from unsafe or challenging conditions of confinement (such as “cruel and unusual punishment”), and/or
    10. a significant development emerged in your favor re. expert testimony introduced in your case that more likely than not affected the outcome of the case.15

    To bolster your case, we also attach supporting information such as affidavits (declarations made under penalty of perjury).

    4. What happens if my petition is granted?

    When a California court approves your habeas corpus petition, it issues a writ that can instruct the government to:

    1. Set you free,
    2. Lessen the charges against you, or
    3. Adjust your prison term or the conditions of your sentencing.

    4.1. The procedure before the court makes a decision

    There are typically multiple stages we go through before a California court reaches a final decision on a habeas corpus petition.

    For instance, if the court determines that the claims made in our petition are valid, it issues an order to show cause inviting the government to submit a response to the petition, known as a “return.”16 Subsequently, we have the opportunity to submit a rebuttal to the return, referred to as a “traverse.”17

    Ultimately, the court may conduct a hearing, evaluating evidence presented by both us on your behalf and the government. The court’s decision is announced upon the conclusion of this hearing.

    Criminal defense attorney explaining legal procedures to inmate in handcuffs

    Pursuing federal and state habeas relief is usually your last post-conviction resort after a criminal conviction, particularly for inmates in death penalty cases.

    5. What are my options if my petition is denied?

    If our habeas corpus petition on your behalf gets denied by California state courts, we may be able to file a new habeas corpus petition in federal court.

    In our experience, we find that federal law takes an extremely strict approach to habeas corpus petitions challenging state sentences. For example, you can only get federal habeas corpus relief if we can show that:

    1. you being in custody violates the United States Constitution or federal law,18
    2. we exhausted all possible remedies available in California,19 and
    3. the California courts made an obvious mistake in the case.20

    Note that federal law has a one-year deadline for filing a writ of habeas corpus. Though we have been able to get courts to extend (“toll”) this deadline for good cause.21

    6. Do I need an attorney?

    It is highly recommended. As your attorney on your California habeas corpus matter, we can:

    1. Identify relevant criminal case law that could bolster your petition,
    2. Guarantee that your petition is submitted promptly, with due diligence, and in compliance with any court directives,
    3. Examine lower court records to ascertain which issues can be the basis for a habeas corpus petition,
    4. Ensure the petition is filed in the appropriate lower or higher court following court regulations, and
    5. Submit a successive petition in federal court if the California courts deny the initial request.

    Legal References:

    1. Cal. Const., art. I, § 11 – Habeas corpus. See also SB 97 (2023).
    2. In re Clark (California Supreme Court, 1993) 5 Cal.4th 750. See also In re Robbins (Cal. 1998) 18 Cal.4th 770. The defendant is “petitioner”, and the “respondent” is the petitioner’s custodian (usually a warden). See Form M-275, approved for Optional Use by the California Judicial Council.
    3. In re Clark, supra.
    4. California Penal Code section 1473 PC.
    5. In re Harris (1993) 5 Cal.4th 813. See also In re Vaquera (Court of Appeals, 2019) 39 Cal. App. 5th 233.
    6. See, for example, In re Rayford (2020) 50 Cal.App.5th 754.
    7. See same.
    8. See in, for example, In re Brown (2020) 45 Cal.App.5th 699; as to “timeliness”, see Robinson v. Lewis (2020) 9 Cal.5th 883. See also California Rules of Court 4.551. Habeas corpus proceedings (“Informal response: (1)  Before passing on the petition, the court may request an informal response from: (A)  The respondent or real party in interest; or (B)  The custodian of any record pertaining to the petitioner’s case, directing the custodian to produce the record or a certified copy to be filed with the clerk of the court.”)
    9. LADA Special Directive 20-10.
    10. In re Davis (1966) 242 Cal.App.2d 645.
    11. People v. Campbell (2020) 51 Cal.App.5th 463. See also People v. Mickel (2016) 2 Cal.5th 181.
    12. People v. Kasim (1997) 56 Cal.App.4th 1360. See also People v. Uribe (2011) 199 Cal. App. 4th 836.
    13. California Penal Code 1473 PC. See also People v. Rogers (2006) 39 Cal. 4th 826.
    14. In re Dennis, (1959) 51 Cal.2d 666. SB 97 (2023).
    15. In re Martinez (2017) 3 Cal.5th 1216. Same.
    16. See, for example, People v. Duvall, (1995) 9 Cal.4th 464.
    17. See same.
    18. See same.
    19. 28 United States Code (“U.S.C.”) 2254.
    20. See same.
    21. 28 U.S.C. § 2244(d).

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