How To File A State Writ Habeas Corpus Petition
Once you have gone through the entire 602 appeal process by filing your grievance with the appropriate agency OR if you’ve exhausted administrative remedies because CDCR/Parole didn’t get back to you on an appeal within the legal timeline require by law, you may then file a state-level petition for a writ of habeas corpus. A habeas corpus petition can be based on any rights guaranteed by the federal or state constitutions, statutes, or regulations.
Through a habeas corpus petition, a state parolee (just like a state prisoner challenging conditions of his/her confinement) can ask a court to order “injunctive relief,” meaning that the court will order prison or parole officials to do something or to stop doing something. For example, a court could order parole officials to drop an invalid parole condition or fix a parole term length miscalculation.
There is no deadline or time limit on when you can file a habeas petition. But keep in mind that, the longer you wait, the more you should be prepared to explain in detail, to the court, why you didn’t file the petition sooner. You can only file a habeas petition if you have “exhausted” (meaning that you completed or gone through) all other administrative remedies. You exhaust the administrative remedies by completing the three levels of the appeals process discussed on PG. 178.
You must file your habeas petition while you are still under some form of custody or parole. At the time you file your habeas petition, you must currently be affected by the condition that you are appealing. If you are no longer suffering from the condition that you are appealing, the court will likely dismiss your habeas petition.
Here are the steps you should take to prepare your habeas petition:
Your petition should include a Judicial Council MC-275 form. You can access this form at: http://www.courts.ca.gov/documents/mc275.pdf.
In addition to the MC-275 form, you must include the following information in your habeas petition:
Identify the type of custody you are under (i.e. you are on parole) and the person who supervises you (your parole office and CDCR)
Name a “respondent” (meaning the opposing party) in your case. If you are on parole, the respondent is the Director of CDCR.
Describe why your current parole conditions are illegal (i.e. your parole term length has been miscalculated)
State whether you have filed any previous court actions about the illegal condition
Verify (swear that you are telling the truth) the statements you’ve made in your petition
Include any supporting documents, such as sworn declarations by witnesses with your petition
If you want to ask the court to appoint an attorney to your case, you should file a “Declaration of Indigence” and “Request for Appointment of Counsel.”
For a sample habeas petition, please visit: http://www.prisonlaw.com/pdfs/STATEHABEAS2008.pdf
Usually, you should file your habeas petition with the Superior Court of the county that you are on parole in. You can file your petition by mailing it to the Superior Court clerk. Remember: any time you file documents with the superior court clerk, you should include an extra copy of the cover page along with a self-addressed stamped envelope so that the clerk can send you a copy with the date of filing and your case number.
If the court determines that you case should proceed, you will have to “serve” the opposing party. Serving the opposing party means that you will have to send CDCR a copy of your petition along with a “Proof of Service” form that verifies that you have served the document.
You can request an attorney by filing a “Declaration of Indigency” and “Request for Appointment of Counsel.”
The judge must act within 60 days from the day you file your petition. Note: Unless the court orders an Order to Show Cause (OSC), you do not have the right to an attorney. But if the court does issue an OSC, it must appoint an attorney to your case if you cannot afford one. See below for more information on OSCs.
The judge at the state court may take the following actions in response to your petition:
Deny your petition: If the court denies your petition, it must explain the reasons why it is denying your petition
Request an informal response from the respondent (the opposing party): If the court thinks your case may have merit, but the court still wants more information prior to taking any actions, the court can ask both parties to submit informal briefings. Your reply can be as simple as a letter back to the court (you must also serve the opposing party with a copy of your response). Your response will be due 15 days after the date that the court requested an informal response (unless the court specifies another due date).
Issue an “Order to Show Cause”: This will require the opposing party (called the “respondent”) to file an explanation why the court should not grant your petition.
If the court decides that your case has merit (meaning the court decides your case can go forward because you have a valid argument), then the court will issue an OSC. An OSC directs the respondent (opposing party) to state any legal or factual reasons why the petitioner (you) should not be granted his or her request.
The respondent (opposing party) must file a response, called a “return,” explaining reasons why your petition should not be granted. The respondent usually has 30 days to file a return.
Once the respondent files their “return,” you should file a “Denial and Exception to the Return.” In your Denial (also called a “traverse”), you should deny any and all false allegations made by the respondent in the return. You usually have 30 days to file your Denial with the court and serve the opposing party.
After the respondent files a “Return” and you file your “Denial,” the court has 30 days to decide whether or not to order an evidentiary hearing. The court only has to grant a hearing if it thinks there is a reasonable likelihood that you may be entitled to relief. If you are granted a hearing, both you and the opposing party will have the opportunity to present evidence.
At the end of the hearing, the court will decide whether or not to grant you the request made in your habeas petition.
If the court decides not to grant an evidentiary hearing, then the court will decide whether or not to grant your habeas appeal based off: your petition, the respondent’s Return, and your Denial. If the court did not order a hearing, then it has 30 days after you filed your Denial to decide whether or not to grant your petition.
If the court grants your petition, the respondent has the right to appeal within 60 days of the court’s ruling. If the respondent does appeal , he or she can request that the court’s order be “stayed”—meaning that it does not take effect while the appeal is pending. If the respondent does appeal, your case will next be heard by the Court of Appeal.
If the Superior Court denies your appeal, you to not have the right to appeal. But, you can, however, file a new appeal with the Court of Appeal, following the same process as discussed above.
If the Court of Appeal denies your petition, you can ask the California Supreme Court to her your case. You can do this by filing a petition for review with the California Supreme Court. If you file a petition for review, the entire record from your appeal in the Court of Appeal will be send to the Supreme Court. You also have the option of filing a new petition for a writ of habeas corpus with the Supreme Court—filing a new petition will start the process over again, and the record from your appeal at the Court of Appeal will not be included in your petition.
If the California Supreme Court denies your petition, and your case involves any federal legal issues, you can file a new petition with the United States Supreme Court.
For more information on how to file and appeal habeas petitions, please visit: http://www.prisonlaw.com/pdfs/STATEHABEAS2008.pdf.
In re Sanders, 20 Cal. 4th 1083 (1999) ; In re Clark, 5 Cal.4th 750 (1993) ; In re Swain, 34 Cal.2d 300 (1949); In re Moss 175 Cal. App. 3d 913 (1985). ↑
If you are no longer suffering from the condition that you are filing a habeas appeal about, then your case is said to be “moot” (meaning not currently at issue; not currently debatable/arguable). There are special circumstances where a court can hear a “moot” case (i.e. the issue you are appealing is one that is likely to come up frequently in other cases). See In re Gardia, 767 Cal. App. 4th 841 (1998). ↑
Griggs v. Superior Court, 16 Cal.3d 341 (1976). The petition can also be filed initially with the Court of Appeal or even the California Supreme Court, if there are special reasons why those courts should hear it at once. Cal. Const. art. VI, § 10. ↑
Cal. Rules of Court, rule 4.551(a)(3)(A). ↑
Cal. Rules of Court, rule 4.551(b). ↑
Cal. Rules of Court, rule 4.551(d). ↑