Writs of Habeas Corpus in Federal Court

Federal Criminal Law

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Federal Habeas Corpus law is entirely distinct from Texas and other state habeas corpus law. 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.

Do you need a federal habeas corpus attorney? Book a consultation to discuss legal representation with attorneys Paul Saputo and Nicholas Toufexis today.

Who is eligible for habeas corpus under 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)

What are the standing requirements needed to file a writ of habeas corpus?

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.[1]

What are the requirements under AEDPA to file a successive writ in federal court?

AEDPA is a gatekeeping provision that sets forth the requirements for filing a “second or successive” habeas corpus application challenging custody. When a person who is incarcerated seeks to file a “second or successive” application in the district court, they must file a motion in the appropriate court of appeals for an order authorizing the district court to consider the application. The appellate court may the authorize the filing of the second or successive application “if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2).”

If a petitioner files a second or successive petition in the district court without first obtaining authorization from the court of appeals, the district court may transfer the petition to the court of appeals via 28 U.S.C. § 1631 because the district court lacks jurisdiction over the petition.

The United States Court of Appeals for the Fifth Circuit recently threw out a habeas corpus petition on these grounds, issuing a decision on April 15, 2024, in Rivers v. Lumpkin, No. 21-11031 (5th Cir. 2024). The court affirmed the district court’s decision that found it lacked jurisdiction over Danny Richard Rivers’ second habeas petition because it was deemed successive under 28 U.S.C. § 2244(b). Rivers argued that his second petition should be seen as a motion to amend his still-pending first petition, a position the court rejected.

The court’s decision emphasized the Antiterrorism and Effective Death Penalty Act’s (AEDPA) requirements that any successive federal writs of habeas corpus must receive prior approval from an appeals court before proceeding. This stringent requirement aims to streamline judicial proceedings and prevent repetitive or abusive litigation.

This decision further entrenches the procedural barriers inmates face when submitting successive petitions, reinforcing the need for careful legal strategy in the filing of initial and successive habeas applications.

For a more detailed view on this case, please refer to the full document available here.

What habeas corpus rights do convicted federal prisoners have?

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.”

Can you file a writ of habeas corpus for someone else?

The application for a writ of habeas corpus may 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.[2] 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.”[3]

When does a writ of habeas corpus extend to a prisoner?

The writ of habeas corpus shall not extend to a prisoner unless:[4]

(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.

If you want to hire us as your federal habeas corpus lawyers, you probably want to know a little more about us.

The Saputo Toufexis | Criminal Defense Lawyers

Paul Saputo and Nicholas Toufexis are partners at Saputo Toufexis | Criminal Defense PLLC and lead the entire trial team at the firm.

Mr. Saputo has practiced throughout Texas in more than fifty Texas state and federal courts and developed groundbreaking innovations in defense strategies and tactics.

Presently a member of the prestigious Texas Bar College, he trains other lawyers in best practices and himself attends many hours of continuous legal education with some of the best lawyers, judges, and law professors in the country.

Mr. Saputo graduated from the elite Duke University School of Law, a nationally recognized top-ten law school in the United States. More about Paul Saputo…

Mr. Toufexis is a veteran of the United States Navy and a graduate of the law school as Southern Methodist University. He has dedicated his entire legal career to criminal defense, and has been with the firm since law school. Recently named a partner, Nick has achieved exceptional results in and out of court for years. More about Nick…

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^1. See 28 USCA § 2241(c)^2. 18 U.S.C. § 2242^3. United States ex rel. Bryant v. Houston (CA2 NY); Wilson v. Dixon (CA9 Cal)^4. 28 USCA § 2241(c)


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