Forest Hills Law Firm, Richard M. Gutierrez, Attorney at Law

FEDERAL HABEAS CORPUS PETITIONS

A state prisoner who is seeking federal habeas corpus relief must file a petition in a federal court. The petition does not need to be filed by the prisoner himself or herself. An attorney or a “next friend” of the prisoner may file the petition on behalf of the prisoner.

A federal habeas corpus petition must generally be filed within one year from the prisoner’s conviction becoming final or within one year of the prisoner discovering his or her right to a claim, whichever is later. The prisoner’s conviction becomes final after the state appellate process has been exhausted.

A federal habeas corpus petition must adhere to forms that have been published by the federal government and to rules that have been established by the federal district courts. The petition must state all the available grounds for relief. The petition must also state all the elements that are necessary to justify the relief. The petition should include a list of facts and legal principles upon which a prisoner is relying. The prisoner may file a memorandum of law in addition to the petition.

A federal habeas corpus petition must be legible and must be signed by a prisoner under the penalty of perjury. The petition must be accompanied by the appropriate filing fee unless the prisoner has filed a motion to proceed in forma pauperis. A motion to proceed in forma pauperis means that the prisoner is indigent and is unable to pay the filing fee.

A federal habeas corpus petition must set forth a prisoner’s custody status. In other words, it must state the conviction and judgment under which the prisoner is being detained and must state the status of the prisoner’s sentence. The petition must also set forth the prisoner’s prior state court proceedings, the disposition of any prior federal habeas corpus petitions, and the relief that is being sought by the prisoner.

A state prisoner is not required to serve a copy of his or her petition for federal habeas corpus relief on a respondent. The district court will serve a copy of the petition on the respondent, who is usually a superintendent or a warden where the prisoner is being incarcerated, and on the state’s attorney general.

If a federal habeas corpus petition does not comply with a federal district court’s rules, a federal district court judge will authorize his or her clerk to return the petition to a prisoner. The prisoner will be granted leave to amend his or his petition. If the prisoner refuses to amend the petition, the petition will be dismissed.

After a federal habeas corpus petition has been filed with a clerk of a federal district court, the clerk will present the petition to a federal district court judge. The judge then examines the petition in order to determine whether the petition is sufficient on its face. If it is not sufficient, the petition will be dismissed without a hearing. If the petition is sufficient on its face, the respondent must file an answer to the petition within a certain period of time. The respondent may file a motion to dismiss the petition or may file a motion for summary judgment if no facts are in dispute. The prisoner may file a response to the respondent’s answer.