Amended Petition For Writ Of Habeas Corpus United States: Fill & Download for Free

The writ of habeas corpus (literally, “you have the body”) is a legal procedure whereby a person can challenge, before the courts, the basis for their detention or incarceration. The burden is initially on the person being held to prove that his or her detention is in violation of a constitutional right, such as the Fifth or Fourteenth Amendment right to due process. Then the burden shifts to the government to show that the due process right has been sufficiently protected.Generally, the “Great Writ,” as it is sometimes called, is used to challenge the legal grounds for incarceration by the government, where insufficient or no due process has been provided to the detainee, so mostly you see this being used against government prisons or other agencies of government. However, the government isn’t a monolith. There are individuals who make the decision to detain someone, and who oversee or supervise the detention. Therefore, the writ can be addressed specifically to the individual, such as a prison warden, who is answerable to the courts for that person’s detention.The U.S. Constitution refers to the writ in Article I, Section 9, Clause 2, which provides: “"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Judiciary Act of 1789 granted the federal courts the power to hear habeas corpus petitions. In 1861, President Lincoln suspended the writ of habeas corpus to allow the Union generals broad authority to arrest and hold persons they deemed to be dangerous to the Union; and in 1865 Congress passed the Habeas Corpus Act, which provides relief for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States."Since the U.S. Constitution only constrains the government and agents of the government, the writ of habeas corpus may not be used to direct private individuals to free those they may be detaining, since a private individual, acting outside of the authority of government, either federal, state or local, cannot violate a constitutional provision. There are, however, other laws that address this kind of behavior.

Just as one does not violate the remedy of breach of contract, the government does not violate habeas corpus. Habeas corpus is the remedy one seeks to challenge their detention on some basis that is often constitutional. It is considered a collateral proceeding, which means that a petitioner must generally have exhausted all other remedies before bringing a petition for a writ of habeas corpus.For example, an accused in a state criminal proceeding stands trial and is convicted. The accused believes they were denied their right to effective assistance of counsel as guaranteed by the Sixth Amendment to the US Constitution. They appeal their conviction first to the state’s intermediate appellate court, where the conviction is affirmed, and then to the state’s highest appellate court, where the conviction is again affirmed.There is no appeal in this case to a federal court. So it would seem the convicted-accused is out of options and if his right to counsel has truly been violated that wrong will not be redressed. But the collateral habeas corpus proceeding may be available. Such a proceeding would be commenced in the United States District Court. In this proceeding the petitioner could raise the issue of the deprivation of the right to counsel under the Sixth Amendment. If the District Court denies the requested relief, the convicted-accused would appeal to the US Circuit Court of Appeals. If they are denied there, they would then petition the Supreme Court for review and that would be the end of the process, unless the Supreme Court takes the case and remands it for further proceedings.

The United States Court of Appeals for the Fourth Circuit ruled in al-Marri v. Pucciarelli, 534 F.3d 213 (2008) that the President had authority to order the indefinite detention of al-Marri, having been designated by the President as an "enemy combatant"--such designation having formed the legal basis for pursuing a policy of militarily eliminating these enemies of the American state who hold no governmental office or authority anywhere in the world.The Supreme Court of the United States, however, in al-Marri v. Spagone, 555 U.S. 1220 (2009) ordered a vacatur of the lower court's ruling--and remanded the case to the Fourth Circuit to be dismissed as moot.The fact of the vacatur might suggest that SCOTUS disagrees with the Fourth Circuit (although "suggests" is the operative word, because ordering a vacatur and remanding for a dismissal due to mootness is not the same as ordering a vacatur on the basis of an error of law--but then again, the Court did order Spagone, a Naval brig commander, to release al-Marri to the regular criminal justice system in result of a petition for writ of habeas corpus).This is nevertheless consistent with a general sense that the Court doesn't like this whole "enemy combatant" doctrine and now prefers to divert them back to the ordinary (albeit federal) criminal-justice system--complete with its panoply of constitutionally-guaranteed rights to substance and procedure.http://www.ca4.uscourts.gov/Opinions/Published/067427A.P.pdf