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Habeas Corpus Petitions in California Explained by Criminal Defense Lawyers

If you were convicted of a crime in California, and you attempted but failed to overturn your conviction after having filed an appeal, you may have resigned yourself to accept that you were convicted and that you must serve out your sentence.

However, in reality, that’s actually not the case. There is yet one more legal device that your attorney can use to challenge your conviction and that is called the petition for writ of habeas corpus.

“You have the body” is the approximate English translation of the Latin phrase: “habeas corpus.”

In the state of California, anybody who is in prison or is otherwise under restraint in some manner by the criminal justice system can file a habeas corpus petition to challenge their incarceration.[1] Article 1, section 11 of the California Constitution guarantees this. Historically, the writ of habeas corpus has been called “the great writ.” It has been the last beacon of hope for persons who have been wrongly incarcerated.

That’s the positive side. The negative side is that it is extraordinarily difficult to get a conviction overturned by the use of a habeas corpus petition. If the jury decided the wrong way and found you guilty when in fact you were innocent, unfortunately, the writ of habeas corpus probably won’t help you. However, you could benefit from it greatly if there was some extraordinary thing that went wrong, for example, the prosecutor introduced false or fabricated evidence,[2] or your trial attorney was incompetent.[3]

You can still bring a writ of habeas corpus in California (even if you are not challenging your conviction) to challenge the conditions of your incarceration. Due to the human rights abuses that are widespread throughout California correctional facilities and California state prisons, the habeas corpus petition can play a powerful role in protecting the rights of prisoners.

Our highly-trained and experienced California criminal defense lawyers will go on to explain habeas corpus petitions in California by addressing the following in this article:

1. What are the requirements I need to meet to bring forward a habeas corpus petition?

A writ of habeas corpus in California is an extraordinary remedy, meaning, it’s supposed to be utilized only in unusual and extraordinary circumstances. On account of this, the best way to impress this upon you is for you to understand the limitations of when and how a petition for writ of habeas corpus can be used.

1.1: The petitioner has to be in “custody”

You can only bring forth a petition for writ of habeas corpus if the state of California has you put “in custody”, if, due to criminal charges or a criminal conviction, your ability to freely move about is restricted.

Thus, you could bring forward a writ of habeas corpus petition if you are incarcerated, i.e., in county jail or state prison. This is also known as “actual custody.”

However, you can also bring forth the habeas corpus petition if you are:

  • Out on parole or probation[4] (i.e., “constructive custody” to the degree that probation and parole entail restrictions on your liberty);
  • Out on bail[5]; or
  • You were released “OR“, in other words, on your own recognizance while awaiting charges.[6]

1.2: Exhaustion of all remedies

Generally, you cannot file a petition for writ of habeas corpus unless you have exhausted all remedies, as judges say. In other words, you must have tried every other solution that the criminal justice system makes available before you can attempt a writ of habeas corpus.

Practically speaking, this means you must have filed all possible appeals of your California criminal conviction prior to you attempting a writ of habeas corpus.

For example, suppose Hector is sentenced to an extraordinarily long term in prison for California’s three-strikes law. Immediately after, wherein they raise a series of objections. The court would reject the petition because he failed the first to file a standard appeal.

In addition to that, you have to have made your appeal on the same grounds on which you go on to file your petition for writ of habeas corpus. Said another way, any arguments you put forth in your habeas corpus petition must also have been made in your appeal.

1.3: The issues were already resolved on appeal

In addition, in California, courts will generally not consider a petition for habeas corpus that is based upon issues that the court already considered and resolved on appeal.[7]

Stated otherwise, if you filed an appeal of your conviction having argued that the jury selection process was erroneously made, and the Court of Appeals decided against you, you cannot then successfully file and argue a petition for writ of habeas corpus making the same argument, that is, that there were flaws in the jury selection process. This is enunciated under something called the “Waltreus rule.”[8]

This might befuddle you. On the one hand, as stated above, you cannot file a writ of habeas corpus petition in California on the basis of an argument that you first didn’t bring up on appeal. On the other hand, if you did not win that argument on appeal, you cannot win on it in a habeas corpus petition either. You would not, of course, be attempting to a habeas corpus petition if you had prevailed on appeal (since, if you had one, you would probably already be out of jail or prison). It almost sounds like “eff’d either way.”

However, in spite of this predicament, habeas corpus petitions can be very helpful because California courts previously carved out a series of exceptions to these rules. You can win on a habeas corpus petition if certain sorts of things went wrong with your trial or conviction even if you did not file an appeal on that issue or if the court denied your appeal.

Due to these exceptions being very limited, there are only a few issues on which it would be wise to draft and file a petition for writ of habeas corpus. That’s what we’re going to talk about next:

2. Grounds for filing a habeas corpus petition in California

2:1: The conviction happened under a law that was unconstitutional

It is infrequent that a court finds a law to be unconstitutional. However, it does happen, typically because the law is too vague or because the law defies some fundamental right that the US Constitution or the California constitution has guaranteed.[9]

Suppose, for example, as part of a protest against police brutality, Wayne shouts in public “F the police!” through a bullhorn. Wayne is arrested and then convicted under a statute that criminalizes “making unreasonably loud noises in public.” He then files a petition for writ of habeas corpus. The court approves and releases him because the law under which he was convicted was too vague and, on account of that vagueness, unconstitutional.

2.2: Ineffective assistance of counsel (People v. Jackson)[10]

Among the most common grounds on which courts approval rates of habeas corpus is due to the defendant not having had a competent attorney at their trial and/their appeal. Alternatively, this is known as a claim of “ineffective assistance of counsel.”

You can make the argument for innocent ineffective assistance of counsel in a petition for writ of habeas corpus even if you did not make that argument in a criminal appeal. This is sensible due to the fact that if you had a lawyer who was incompetent, there was a possibility they would have failed to tell you No caps that you needed to file an appeal. Moreover, they almost would certainly not have helped you to make an argument for ineffective assistance of counsel on appeal. Obviously, that would have been against their best self-interest.

However, in order to obtain a writ of habeas corpus for your trial lawyer having been incompetent, you must also show that the outcome of the trial would have been different had you a better attorney. Stated otherwise, you must demonstrate that your trial attorney made errors that were “dispositive,” i.e., but for their mistakes, the outcome of your trial would have been different.

For example, Tim’s lawyer, at his criminal trial, said to him that the worst-case scenario, i.e., maximum sentence, for the crime that he was charged with was 40 years. Tim, on the basis of his lawyer’s representation, decides to enter a “no contest” plea to the charges and receives a prison term of 20 years.

Subsequently, Tim discovers his first attorney advised him wrongly. In fact, the maximum sentence was only 25 years. Thus, he only saved five years instead of the 20 years he thought he would be saving by entering a no contest plea.

Had Tim been aware of the real maximum sentence, it’s very likely he would have just taken the risk and gone to trial. The bad advice of his attorney played a very large role in the outcome. Therefore, his petition for writ of habeas corpus would probably be granted and he would be released from prison.

It is also a possibility a habeas corpus petition would be granted if you didn’t have the funds to pay for a lawyer and the state did not provide you with one, or if you were not advised that you had the right to get a lawyer from the state.

2.3: Prosecutorial misconduct

Petitions for writ of habeas corpus may also be approved in situations where the prosecutor committed some misconduct, a sadly all-too-common event in California.

Your petition for writ of habeas corpus may also be approved if the district attorney, at your trial, participated in certain types of misconduct. Here is a list of just a few:

  • Calling a witness, the prosecutor knew or should have known would go in to present false testimony;
  • Failing to turn over to your defense attorney key evidence that was exculpatory (in other words, favorable to your case);
  • The presentation of false evidence that caused you to enter a guilty plea;
  • Giving false information to the jury.

2.4: Being incompetent during trial

California law states that a person cannot be tried for a crime while he or she is insane or otherwise mentally incompetent to stand trial.

Petition for writ of habeas corpus may be approved on the basis that you were not competent when you were tried for a crime.[11]

It would make sense that the court would consider incompetence as a legitimate ground for a writ of habeas corpus, much like with claims of ineffective assistance of counsel. Petitions for writ of habeas corpus exist to correct the kinds of errors in the California criminal trial process that appellate courts would not catch. If you didn’t have a competent lawyer or if you were insane during the usual court process, it is very likely that an injustice was perpetrated either during trial or during the appellate stage.

2.5: Newly-discovered evidence

yet another reason that courts may approve habeas corpus petitions is when new evidence has been discovered after the trial and the appellate process was complete.[12]

However, because it is extraordinarily rare that all the evidence is discovered before and during trial, and therefore it is very common for new evidence to surface after the verdict, courts have placed strict limitations on the kind of new evidence to that would form the basis of a successful habeas corpus petition. In other words, the new evidence must:

  • Show with absolute certainty that you are innocent; or
  • Totally undermine the complete structure of the prosecutor’s case.

For example, Chuck is convicted of murder. He files several appeals and loses them all. Many years later, someone else steps up and makes a confession to having killed the victim that Chuck was convicted of having killed. This is sufficient for a court to grant Chuck’s writ of habeas corpus petition and to let him out of prison.


Suppose that Bob is convicted of armed robbery. One of the key trial witnesses in the prosecution of Bob is Blake.

Subsequently, a woman named Amy comes forward and alleges that Blake said he told lies at trial and actually framed Bob. Blake denies this ever happened.

Because it’s Amy’s word against Blake, Amy’s story, i.e., the new evidence, does not show for certain that Bob is innocent. Therefore, the court would not grant Bob’s habeas corpus petition.

2.6: Changes in the law

Yet another valid reason for a petition for writ of habeas corpus is a change in the law since you were convicted or lost your appeal.[13]

This also makes sense considering the objectives of habeas corpus, i.e., if the law were such that you were in fact guilty at the time of your trial or appeal, and it turns out you are innocent, you would require some other legal device beyond the appellate process to fight your conviction.

For example, suppose, Belinda consumes marijuana for medical purposes and with the recommendation of her doctor. She then goes on to cultivate her own marijuana. The police discover her rich and plentiful marijuana garden and arrest her. She is ultimately convicted for having cultivated marijuana; she files an appeal but the appellate court rules against her.

Suddenly the California compassionate use act, also known as the medical marijuana law, is ratified by California voters. In other words, suddenly what Belinda did is now legal.

Belinda may be able to successfully bring a petition for writ of habeas corpus so that she is released from jail if she can demonstrate that the change in the law yields that her conduct (for which she was arrested and convicted) is actually no longer illegal in California

2.7: Battered woman syndrome evidence

California law specifically provides that a prisoner can file a petition for writ of habeas corpus for the purpose of introducing the testimony of a scientific expert concerning battered woman syndrome. In a nutshell, the syndrome consists of the deleterious psychological impact of domestic violence upon a spouse or other intimate partner.[14]

Having said that, this is only viable in very narrow circumstances which include the following:

  • Evidence regarding the effects of domestic violence was not introduced in the defendants’ original trial;
  • The defendant sustained a conviction for a violent felony such as murder, mayhem, voluntary manslaughter, kidnapping or attempted murder.
  • The crime occurred before August 29, 1996
  • There is a reasonable expectation that the introduction of battered woman syndrome expert testimony would have generated a different outcome in the original trial

2.8: Mounting a challenge against the conditions of your confinement

Finally, another way in which habeas corpus petitions are commonly used is to mount a challenge against the conditions under which you are serving out your prison sentence.[15] The use of a petition for this purpose is or can be crucial considering the abominable and horrific conditions inside many California prisons today, with jail abuse and prison abuse being, sadly, prevalent realities throughout California correctional facilities.

According to West Covina criminal defense attorney Joseph L. Coimbra,

“You may think that because you were convicted of a crime you have given up all of your rights. But that is actually false. Prison inmates are possessed of civil rights and human rights, the restricted nature of those rights notwithstanding. If you have suffered medical neglect or abuse while in prison, and the procedures that the prison system makes available for challenging such conditions are not yielding results, it may be time for a habeas corpus petition.”

3. Are there constraints surrounding a California habeas corpus petition?

For the above reasons, a writ of habeas corpus petition in California there’s a much more circumscribed, i.e., “limited”, avenue for pursuing legal relief than an appeal would be.

There is one way, however, in which a petition for writ of habeas corpus is a more flexible legal device than an appeal and that has to do with timing.

While time frames and deadlines associated with appealing California criminal conviction can be very strict, there are actually no rigid deadlines associated with filing a petition for writ of habeas corpus so long as it is filed while you are in custody.

Having said that, it’s not like you can delay a filing of your habeas corpus petition for as long as you want. In fact, if you do delay, do you or your attorney will have to justify why the petition was filed in such a delayed fashion. However, any delay would technically begin from the time you discovered that you have a good reason to seek relief via habeas corpus. This can happen the day you are convicted or it can happen many years later.

Thus, for instance, if you discover 10 years into your prison sentence that some third-party made a confession to the crime which you were convicted of having done, you can mount a challenge of your conviction via habeas corpus no matter that any applicable deadline for filing an appeal may have long since elapsed.

4. Procedure for petitioning for habeas corpus in California

Petitions for writ of habeas corpus go through the courts. However, the court process for securing a writ of habeas corpus is different from other California criminal court processes.

The petition for writ of habeas corpus should contain which specific grounds on which you are basing the petition on. It is important to attach documents that support your petition.[16]

If your petition involves any question of fact, the petition should be filed with a California Superior Court. If the California Superior Court denies the petition, you can subsequently file the petition with the California Appellate Court, or in some circumstances, the California Supreme Court.[17]

The judge will now decide whether to grant or dismiss the petition. The judge will determine whether all the facts alleged in the petition are true. If not, the petition will be dismissed out right.[18] If it is determined that all facts are true, the person/agency who has you under custody will be given an opportunity to submit an answer to your petition, called a “return.” You will then have to file an answer to the return, called a “traverse.”

If any facts are in dispute, both parties will have an opportunity to present evidence in a hearing called for that purpose. If no facts are in dispute, the judge will decide based on the submitted documents.

5. Federal writ of habeas corpus

5.1: State Prisoners

Based on how the courts have ruled in the past, the odds of a California writ of habeas corpus being granted is low. But despite these low odds, you still have an opportunity to file a petition for writ of habeas corpus in a federal court even if your initial petition is dismissed.

Keep in mind though that federal laws are strict when it comes to challenging state sentences via writ of habeas corpus.

A federal habeas corpus is only possible if your conviction or custody has violated the United States Constitution or federal law. Violations based on California state law are not valid grounds for a federal habeas corpus petition.

You must also be able to show that you have exhausted all possible and available reliefs under California law.[19] An exception to this rule is if you can prove that state processes were not able to protect your rights.

Lastly, federal courts will only grant the petition for habeas corpus if the state clearly made a huge a mistake in denying your petition for habeas corpus with the California courts, particularly:

  • The California court’s decision is contrary to established federal law as determined by the Supreme Court of the United States
  • The determination of facts is clearly unreasonable in light of the evidence presented[20]

5.2: Federal Prisoners

For federal crimes for which you are serving time in a federal prison, the petition should be directly filed with a federal court.[21]

The difference for federal prisoners and state prisoners are the filing dates/periods. For federal prisoners, the petition must be filed within one (1) year of the following:

  • Final date of conviction
  • The date when a new law takes effect (the new law being the basis of your petition)
  • Date on which you could have discovered new facts that which you will be basing your petition on (note that this date can be earlier from when you actually discover the new fact. What matters is the date on which you could have possibly discovered such fact by exerting reasonable efforts)[22]

No Judgment, Only Professionalism

If you have been arrested or charged with a crime, it is all-important to hire an experienced, aggressive, and seasoned private West Covina defense lawyer to fight your case. We always make our clients feel right at home and we encourage you to take comfort in the fact that you have a dedicated advocate on your side at Coimbra Law Firm, APC. Our highly-experienced lawyers at Coimbra Law Firm, APC will help ensure that your Constitutional rights are protected. Each of our clients will receive personalized attention, complete discretion, and trained staff working to provide the best legal assistance available.

Our only job is to defend you with the maximum competence, diligence, and zealousness. Do not hesitate to call us at (626) 827-7222 for the representation you need.

[1] California Penal Code §1473

[2] Id.

[3] People v. Johnson, (1995) 35 Cal.App.4th 1351, 1355

[4] In re Jones (1962), 57 Cal.2d 860, 861 n.1

[5] In re Catalano, (1981) 29 Cal.3d 1, 8

[6] In reSmiley, (1967) 66 Cal.2d 606, 614

[7] In reClark, (1993) 5 Cal.4th 750, 765

[8] In re Waltreus, (1965) 62 Cal.2d 218, 225

[9] In re Davis, (1966) 242 Cal.App.2d 645, 649-50

[10] People v. Jackson, (1973) 10 Cal.3d 265, 268

[11] In re Dennis, (1959) 51 Cal.2d 666, 673-4

[12] In re Weber, (1974) 11 Cal.3d 703

[13] In re Harris, (1993) 5 Cal.4th 813, 841

[14] California Penal Code 1473.5

[15] Frias v. Superior Court, (1975) 51 Cal.App.3d 919, 924

[16] People v. Duvall, (1995) 9 Cal.4th 464, 474

[17] Application of Hillery, (1962) 202 Cal.App.2d 293, 294

[18] People v. Duvall, (1995) 9 Cal.4th 464, 474

[19] 28 U.S.C. § 2254

[20] Id.

[21] 28 U.S.C. § 2255

[22] Id.

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