Criminal Law

A habeas corpus petition is generally the last resort for an individual who has been convicted of a crime to request court review of his/her case. Habeas corpus petitions are filed in federal court and are governed by a different set of rules from all other cases.

Before you can file a petition for habeas corpus in federal court, you must first “exhaust” all of your state court remedies. In other words, you must have filed an appeal following trial and had that appeal resolved. Then you must file your state post-conviction relief petitions and have those resolved, not only in the trial court but also in the Court of Appeals. You are required to raise all possible claims, based on both state and federal law, in your state court appeal and post-conviction proceedings.

Once you have exhausted all of your state court remedies, you are entitled to file a federal habeas corpus petition, but you have only one year in which to do so. Additionally, you are only permitted to raise federal constitutional issues which have already been raised in your state court proceedings. In other words, you are not allowed to raise any new issues that were not previously raised in state court.

Once the petition is filed, the state attorney general has the opportunity to file a response to the petition, setting forth reasons why the federal court should or should not grant jurisdiction to hear the petition. The state may also respond to the actual issues that are raised in the petition. The district court has no time limit upon which to rule on habeas corpus petitions, so these cases are generally not resolved for many months after the petition is filed in the federal court. If you are unsuccessful on your federal habeas corpus petition, you may appeal to the Ninth Circuit Court of Appeals, but only if the district court grants you permission to appeal.

If the district court grants your federal habeas corpus petition, it may do so with a hearing or without a hearing. In either event, usually the district court refers the matter back to the trial court with instructions on how to resolve the issues you have raised.

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