Petition for a State Writ of Habeas Corpus - Criminal Convictions and Detention Facilities

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#5605.01

This pub gives you information and sample forms to file a “Petition for Writ of Habeas Corpus” in a California state court. This is a fast and easy way to get a judge to decide on your rights in a jail or prison. You can also use it to ask the court to release you.

A Petition for Writ of Habeas Corpus is a relatively fast and easy way to get a judge to decide an issue regarding either your rights in a state detention facility (conditions of confinement) or the legality of your confinement.  The form and instructions are for filing a Petition for Writ of Habeas Corpus in California state courts.

I. PREPARING THE PETITION

General Considerations

  1. Read the entire petition form and these instructions before filling out the form.
  2. Fill out the form as clearly as possible in black ink, if possible, or by typing your answers.  Take your time when filling out the form.  It might be a good idea to practice on a blank sheet of paper first.
  3. If you don't have enough space to answer a question, finish your answer(s) on (an) additional page(s) and attach them to the back of the petition form.  Note on the petition form that your answer is "continued on additional page(s)."
  4. Attach copies of any documents which support your claim or which the court will need in order to understand your claim.  For example, if you were put into isolation without sufficient grounds, you might wish to include the copies of any complaints you've filed.  It is important to do this because the court may deny your petition if it does not have enough evidence.
  5. Normally you must have “exhausted your administrative remedies” (finished the grievance/complaint and appeals process at your place of detention) before a court is willing to hear your petition.
  6. There is no filing fee for a habeas corpus petition in state court.  However, you may have to pay fees if the court appoints an attorney to represent you, or if an expert witness is required.  There is a form to request a waiver of court fees if you cannot afford those expenses.

II. FILING THE PETITION

In the Superior Court, all you are required to do is send the original to the court clerk.  It is advisable to send a second copy with a stamped self-addressed envelope so that the court can return a stamped copy to you, showing the case number and when it was filed.  If you are challenging a criminal conviction and are filing a petition in Superior Court, you should file it in the county that made the order.  If you are challenging the conditions of your confinement and are filing a petition in the Superior Court, you should file it in the county in which you are confined.  At the Court of Appeal level, if you are not represented by an attorney, you only need to file an original, but at the Supreme Court level you must file an original and ten copies.  

III. WHAT TO EXPECT AFTER YOU FILE YOUR WRIT PETITION

A court may:

  • Deny the petition.  Possible grounds are that a previous petition on this issue was denied by the same court, the petition fails to show that an appeal is inadequate, or the claim is frivolous.  The petition may be denied without any explanation at all.
  • Issue an order to show cause, which means that the court has taken your allegations as true and you will be entitled to relief if your allegations are proved.  However, by issuing an order to show cause the court also allows a return or response to be filed by the person (detention facility) whose custody you are in to counter your allegations.   An order to show cause does not grant the relief requested in the petition.
  • Request an informal response from the respondent (detention facility).  After reviewing the informal response, the court may request more information, issue an order to show cause, or deny the petition.

You should hear back from the court within 60 days.

IV. WHAT TO DO IF THE WRIT PETITION IS DENIED

If the Superior Court has denied your petition for writ of habeas corpus, you may file a new petition for writ of habeas corpus first in the Court of Appeal and then, if the Court of Appeal denies the petition, the Supreme Court of California.  If your California Supreme Court petition is denied, you do not file a notice of appeal—you file a new petition instead.

V. INSTRUCTIONS FOR (MC-275) WRIT PETITION FORM

A blank form can be found included in this packet as Attachment A and at the following link: http://www.courts.ca.gov/documents/mc275.pdf. It may be helpful to refer to it when reading these directions.

A. Blanks at the Front of the Petition Form

  1. Fill in your name and the name and address of the facility where you are currently and your ID number
  2. The next two lines are for the name of the court you are filing the writ in. If you are challenging a criminal conviction and are filing a petition in Superior Court, you should file it in the county that made the order.  If you are challenging the conditions of your confinement and are filing a petition in the Superior Court, you should file it in the county in which you are confined.
  3. You are the petitioner and the respondent is the name of the state agency (California Department of Corrections or Sheriff’s Department) confining you.
  4. Leave the line under “Petition for Writ of Habeas Corpus” blank. The court clerk will fill in the case number for your writ (it is different than the case number you have with the court of your conviction).
  5. Under “This petition concerns”, choose the box that applies or you can check “other” and write in either “conditions in jail/prison" “rights violation”, “length of criminal conviction”, etc.

B. Numbered Questions

  1. Write your name again and where you are confined.  Check the box for “Criminal Conviction.”
  2. Fill out “a” through “i” as accurately as possible.  Fill in the last plea you entered and what kind of trial you had.
  3. For #6 and #7, put either what right you think has been denied or why you think you are illegally confined.  Give supporting facts/cases (if known).

    Clearly describe the rights that are being denied you while you are confined, and the date(s) on which the violation(s) occurred.  You can challenge the denial of any right which you are entitled to under state or federal law (including the constitution, court cases, statutes and administrative regulations) or under the policies of the facility in which you are being held.  These might include such rights as the right to access to your possessions, the right to have visitors, the right to make phone calls and send and receive mail, the right not to be secluded or restrained inappropriately or excessively, etc.  As noted above, it will be helpful (but is not necessary) for you to refer in your petition to the statute number, policy number, case citation, etc. guaranteeing the(se) right(s).

    Usually, you can only protest when rights are currently being denied you or when you have evidence you will be denied your rights in the foreseeable future.

    List the reasons you believe your confinement to be illegal.

  4. Questions 8, 9 and 10 are mostly relevant if you are contesting the legality of your confinement.  Fill out as appropriate.
  5. Question 11 is regarding the grievance or complaint process within the facility that you are confined.  Normally, you must finish (exhaust) all of the grievance or complaint levels before filing a petition for a writ of habeas corpus.
  6. Questions 12, 13, and 14 relate to previous requests for relief from your current confinement. If you have filed such requests then fill in the requested information.
  7. Question 15 relates to if there has been a delay since you feel your sentence became illegal and you filing the request for a writ.
  8. Question 16 and 17 relate to currently pending cases you have and whether you currently have an attorney.
  9. If you are not filing in the Superior Court, explain why not.
  10. Date and sign your name at the bottom of page 6.
 

Click links below for a downloadable version.