Federal Habeas Corpus law is entirely distinct from Texas and other state habeas corpus law. William Salazar and I have answered some frequently asked questions about Federal Habeas Corpus law below that are asked of our attorney, and we will continue to explore this topic in other articles.
HABEAS CORPUS ATTORNEY FAQs
Federal Habeas Corpus attorneys work for their clients in obtaining relief through the federal court system. Filing for a writ of habeas corpus in federal court entails research, investigation and drafting of a petition that will be filed in a federal court. Attorneys can assist with every step of this procedure, and it is highly advisable that you hire an attorney to help you navigate this complicated area of federal law.
To determine whether you are eligible for federal habeas corpus, you first have to determine which group you fall into under federal habeas corpus law. Citizens (resident and nonresident), Aliens (resident and nonresident, friendly and enemy) or Indians (tribal and nontribal).
Citizens (resident and nonresident)
- Resident citizens are U.S. citizens who reside in the country
- Non-resident citizens are U.S. citizens living outside of the country.
Aliens (resident and nonresident, friendly and enemy)
- A resident alien is a foreigner who is a permanent resident of the country in which he or she resides but does not have citizenship. To fall under this classification in the U.S., you need to either currently have a green card or have had one in the last calendar year. You are a resident alien if you have either passed the green card test or the substantial presence test.
[A]n individual meets the substantial presence test if such individual was present in the United States on at least 31 days during the calendar year”, and for at least 183 days during the calendar year and the two preceding calendar years, calculated pursuant to a weighted formula.
Federal Habeas Corpus law found at Sec. 7701(b)(3)(A)
- Nonresident aliens. If you are not a U.S. citizen and don’t pass either the green card test or the substantial presence test you are a nonresident alien.
- Friendly aliens (AKA alien friend) will be a citizen either of a neutral country or of a country allied with the United States.
- An alien enemy is the subject or citizen of a foreign state at war with the United States. For resident enemy aliens: The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy
Indians (tribal and nontribal)
- An Indian who has left the tribe (nontribal) is in the same position as an ordinary resident citizen.
- A tribal Indian is one who retains membership in a tribe.
- The privilege of the writ of habeas corpus shall be available to any person in a court of the United States, to test the legality of his detention by order of an Indian tribe (tribal)
Traditionally one must be in “custody” to file for a writ of habeas corpus. However, the definition of custody has benn expanded to include any restraint “not shared by the public generally. See 28 USCA § 2241(c)
The writ of habeas corpus shall not extend to a prisoner unless:
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and a domicile therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
Federal Habeas Corpus law found at 28 USCA § 2241(c)
A federal court may not entertain a petition for habeas corpus filed by a federal prisoner unless he has first sought relief by way of a motion to vacate sentence under 28 USCA § 2255 and such relief has been denied or unless the remedy by motion “is inadequate or ineffective to test the legality of his detention.
Under the Federal Habeas Corpus law found in 28 USCA § 2255, federal prisoners must depend on the statutory equivalent of Habeas Corpus. This provision in the code authorizes a motion to vacate sentence and release of the movant “upon the ground”: (1) that the sentence was imposed in violation of the Constitution or laws of the United States, or (2) that the court was without jurisdiction to impose such sentence, or (3) that the sentence was in excess of the maximum authorized by law, or (4) is otherwise subject to “collateral attack.”
United States Code (18 U.S.C. § 2242) allows the application for a writ of habeas corpus to be signed and verified “by someone acting in … behalf” of the person for whose relief it is intended, in recognition of the fact that the person under restraint is not always in a position to file the petition himself. Such applications, known as “next friend” applications, are not common but are perfectly proper and well accepted. Thus, the inability of the person in custody to understand the English language or his predicament, particularly in the case of aliens, or the impossibility of access to the prisoner, or the mental incapacity of the prisoner will warrant use of the “next friend” application. The application must set forth facts that will convince the court that the interest of the next friend is appropriate and that there is good reason why the detained person does not himself sign and verify the complaint; “it was not intended that the writ of habeas corpus should be availed of, as a matter of course, by intruders or uninvited meddlers, styling themselves next friends.” United States ex rel. Bryant v. Houston (CA2 NY); Wilson v. Dixon (CA9 Cal).
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