How to File a State Habeas Corpus Petition
This post considers the process of filing a petition for a writ of habeas corpus in state court. For an overview of federal habeas corpus, review our recent post, “Petitioning for Federal Relief Under 28 U.S.C. § 2254.”
In addition to being able to file a petition for a writ of federal habeas corpus relief, state prisoners also have the option to file a petition for a writ of state habeas corpus relief. The procedures and process of seeking state habeas corpus are governed by state statues, and vary by state.
There are several requirements that must be met in order to file a petition for state habeas corpus relief:
- The petitioner must be incarcerated,
- The petitioner must have no other state remedy available to him (either through exhaustion or expiration), and
- The petitioner must allege that he is entitled to immediate release.
A petition for a writ of habeas corpus asks the reviewing court to answer one question – is an incarceration legal. A petition for a writ of habeas corpus is not an opportunity for a court to reconsider the guilt or innocence of a prisoner. Rather, a reviewing court will evaluate the procedures used to convict and sentence a prisoner.
Prisoners do not have a constitutional right to the assistance of counsel for state habeas corpus proceedings. However, certain states including Colorado provide prisoners with the right to the assistance of counsel at certain habeas corpus hearings. In Wisconsin, petitioners can file a “Motion for Appointment of Counsel” to request appointed counsel for a habeas corpus proceeding, however there is no guarantee of appointment.