Habeas Corpus By A Person In State Custody - Forms: Fill & Download for Free

A petition for writ of habeas corpus is intended to challenge the legality of a person’s restraint of liberty, i.e. incarceration or institutionalization. Habeas corpus petitions start off as a state proceeding. In some states, like Washington State, they are called “Personal Restraint Petitions,” but function the same way a habeas corpus petition would function elsewhere. The standard of review for state habeas corpus petitions is going to vary from state-to-state.Once you have finished with your state’s habeas corpus, you can file a federal habeas corpus petition. The federal court standard of review is rigid and stringent[1].On an automatic appeal, it would depend on your state’s particular procedural requirements and restrictions regarding petitions for writ of habeas corpus. Some states, like California, allow concurrent filing of direct appeals and collateral petitions. Other states do not.I would check with your local law library for resources. There is a great 4-volume set of books that I rely on frequently that has practice and procedure for habeas corpus petitions in all 50 states. Its called State Postconviction Remedies and Relief Handbook with Forms. I highly recommend it if you have questions about habeas corpus procedures in any state.Footnotes[1] 28 U.S. Code § 2254 - State custody; remedies in Federal courts

As with most all legal questions, this boils down to should one be jailed.The answer is no; one should not be jailed in any of the United States for failing to rise for a judge entering or leaving a courtroom.Can one be jailed for such conduct? Most assuredly.The judicial authority is given by the Constitution to a Supreme Court. Any judge, state or federal, is subject to the Supreme Court.The power of a judge is limited to the cause or controversy before them. It is invoked by a summons, which must be based upon a clearly stated cause of action in law and/or equity that presents a question to a court that is within the power of that court to decide.Judges can do just about anything within the confines of their power—while limited to the facts and jurisdiction of the cause or controversy, the judicial power to resolve the specific cause or controversy is unlimited and beyond question save by a Court of competent and superior jurisdiction.However, judges can exercise power over non-litigants. Judicial power is used to bring witnesses to court, jurors to court, authorize search and seizure of persons or property; judicial power can even take life.Judges are the master of their courtroom. They control the process and like an umpire or officiator at any sporting event, they can eject any person from the proceedings they oversee. As opposed to a mere umpire, a judge is not limited to the remedy of ejecting a person from the courtroom, they can instantly have their bailiff take a person into custody and lock them up.Of course, a Court of Appeal is going to entertain an appeal of a contempt almost immediately by Writ of Habeas Corpus or Writ of Mandate and, historically, in most cases will overturn a contempt citation that puts a person into jail or reduce it substantially.Most people do not realize that a courthouse is, in reality, a jail. One of the doors leading into most courtrooms, comes from a jail and the courthouse has dedicated and secure facilities for processing persons who are in custody.Both state and federal trial courts have the power to jail a person for contempt. I rather doubt any trial judge would be foolish enough to base a contempt citation and ensuing penalty upon an attorney’s, a litigant’s, a witness’. a staff member’s or even an observing member of the public’s failure to rise; however, I can—as can any lawyer or person with an imagination—envision facts that would give rise to an appropriate contempt based upon what might be called a “failure to rise.”The United States Constitution is one of limited powers; it is the very opposite of an all-powerful sovereign and purposely so. All powers and rights reside in the individuals and were reserved to states and individuals unless expressly granted by the Federal Constitution. This is the essence of federalism—opposing powers holding each other in balance.Historians widely believe that James Madison was the man responsible for insuring that the United States Constitution was amended so that there would be no mistaking that citizens of this newly-formed entity of United States possessed certain rights. Among them, and relevant to this discussion, is the freedom of speech—the right to criticize the government—and, as more broadly interpreted in later authoritative discussions of Constitutional law, freedom of expression.Most state and federal laws regarding contempt do not justify the use of contempt power when a person is expressing contempt for the court by word or gesture, so long as the gesture is not a threat to the Court or to the proceedings themselves. A trial is a tremendously costly thing to society—persons are taken from their daily lives, lawyers are engaged, secure facilities are constructed, a judge is employed.Anything that threatens the integrity and purpose of a trial is a contempt of court and punishable by a judge upon notice and opportunity to respond—i.e. due process.In all but the clearest cases of direct threat, a judge has the obligation to warn of contemptuous action and advise that the action cease immediately upon threat of punishment. The action must be clearly defined, clearly a threat to the person of the court or anyone subject to the immediate powers of the court; or a threat to the procedures and integrity of the court.Failure to rise could be a pre-arranged signal to a witness or a juror about something about to happen. Failure to rise could be a “line in the sand” drawn by a judge faced by an increasingly disrespectful actor. A wise judge knows that the limits of their power rests in the public perception of whether justice is being done.The failure to rise may be that of a seasoned attorney who knows better or the impotent gesture of a disappointed litigant under tremendous stress.A defendant who refuses to rise to face their sentence will be helped to their feet by bailiffs—as gently as possible, but firmly.Law is a profoundly human exercise of power.The best judges never lose their cool, they cannot be baited into losing their temper and doing something as foolish as jailing a person who fails to show them respect.However, real leaders understand the power of symbols and gesture. If you fail to salute a superior officer, you will be punished for it.The trick is to wield power in such a way that your decisions are respected, obeyed and used as examples of wise decision-making for others.Can a judge do something? Yes.Can you sue someone for just about anything? Yes.Will the decision be upheld?So long as the public believes that bad decisions will be reversed, the public will continue to uphold the other decisions made by a Court or a Jury.When public confidence in the system disappears, we get the O.J. Simpson case and similar situations. I think we can all agree that a robust and respected judiciary is among the most important institutions in civilization.Let’s not jeopardize it by bestowing judicial authority upon unsuitable individuals.

Thanks for the A2A!There is an almost universal requirement in American Law that a person be in custody to petition the court for a writ of habeas corpus.The underlying reason for this requirement is that it is the writ's function to obtain the release of those who are illegally detained and deprived of their liberty," and it thus cannot operate in the absence of such restraint. It is well settled that actual restraint, as distinguished from moral restraint, is necessary to warrant issue of the writ, but restraint precluding freedom of action is sufficient notwithstanding lack of confinement in a jail or prison.[1]In some states, like California, probation and parole are forms of constructive custody and the courts have held that a person on probation, parole, bail or released on her/his own recognizance is eligible for habeas corpus relief. [2]Footnotes[1] http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1985&context=mlr[2] In re Azurin (2001)