In the U.S., you can challenge your detention by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241. A habeas petition moves forward as a civil lawsuit against the government. Most of the time, it is filed against the prison you’re in or that facility’s warden. But how you file your petition for writ of habeas corpus could depend at least in part on whether you are in state or federal custody.
When can you file a petition for writ of habeas corpus?
There are a lot of times when you can file a petition for writ of habeas corpus. First, you can file the petition if you want to challenge the way your sentence is being carried out. An example of this is if you want to claim that the BOP miscalculated your sentence or failed to apply your good time credits. You can also file a habeas petition if you believe you are being detailed illegally for immigration reasons.
Are you in state or federal custody for a habeas petition?
To file a petition for writ of habeas corpus in federal court, you can use forms that are already available on uscourts.gov. If you are in a federal prison, you can use this form. If you are in a state prison, you can use this form. Depending on what state you are in, the U.S. District Courts in your state might have forms you can use, too. If you are in Hawaii, for example, you could use this form instead.
To know which form to use, though, you have to know if you’re in state or federal custody. Ask yourself these questions. Were you charged with a state or federal crime? Was the prosecutor a local district attorney or prosecutor? Or was the prosecutor an Assistant U.S. Attorney (often called an “AUSA”)? Did you go to court in a U.S. District Court or a court named after a county?
If you were charged with a federal crime, faced an AUSA or went to court in a U.S. District Court, you’re probably in federal custody. If the opposite is true, you’re probably in state custody. As a general rule, federal prisons usually have less people. They also have a lot of “white collar” criminals. The names of federal prisons also usually include “FCI.” “FCI” stands for “Federal Correctional Institution.”
You can file a petition for writ of habeas corpus for several different reasons. If you choose to use the standard form to file a petition for writ of habeas corpus, you will want to know if you are in state or federal custody. It shouldn’t be too hard to find out which applies to you.
Even though these standard forms are available, you don’t have to use them. If you don’t use the form, you still have to include enough allegations to allow your claim to move forward. This means you must clearly say why you believe your detention is illegal. Otherwise, federal courts can dismiss your case.