A petition for a writ of habeas corpus is a narrow legal option available to people in custody. In this kind of petition, you argue that you are being unlawfully held in custody and should be released. Most of the time, courts deny these petitions without a hearing. But, if they hold a hearing, you can often present evidence, call witnesses and make an argument. Courts do not grant these petitions often, but they will if the petition has merit.

What is a petition for writ of habeas corpus in federal court?

The term “habeas corpus” is Latin for “to produce the body.” In the U.S., federal courts use a writ of habeas corpus to determine if a prisoner’s incarceration is unlawful. You file a petition for a writ of habeas corpus as a lawsuit against a state official (like a warden). In other words, you argue that officials illegally detained you and seek a release. Before you file a petition in federal court, though, you may have to file a similar petition in state court.

What is a petition for writ of habeas corpus in state court?

Many states have habeas corpus procedures, too. For example, in North Carolina, the state constitution includes a habeas corpus provision. That provision is then implemented by several statutory provisions. Like federal court, a North Carolina habeas petition argues that detention is unlawful. Unlike federal court, however, you must file a habeas petition before a final judgment. This is early. If you’ve already had sentencing, it’s too late.

Can a lawyer help you file this kind of petition?

Yes. You can hire a lawyer to help you file a petition for writ of habeas corpus. You can also ask the court to appoint a lawyer for you. But courts do not have to grant your request. And there are also many organizations that help people with these petitions.

What happens if a court grants a habeas petition?

Courts don’t grant petitions for writs of habeas corpus often. Government agencies don’t often publish reports with data on these petitions. But a Bureau of Justice Statistics report states that federal courts only grant three percent of habeas petitions. And less than two percent of those petitions resulted in a prisoner’s release. Instead, most of the cases just resulted in more review.

But, if a court does grant your petition, there are several options for the court. The best-case scenario for you would be if the court released you from prison immediately. But the court could also reduce your sentence, change conditions of your confinement or declare other rights.

The Takeaway:

A petition for a writ of habeas corpus is a narrow legal option available to people in custody. You will argue that you are being unlawfully held in custody and should be released. While courts don’t often grant these petitions, they do a petition has merit. Many people file these petitions without a lawyer, but having a lawyer can be a big help.