21-a-3 What You Can Complain About in Your Habeas Petition

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

21-A-3. What You Can Complain About in Your Habeas Petition

(a) Before Trial¹¹

If you are incarcerated before your trial (detained), you may be able to claim one of the following grounds for habeas relief: improper extradition, excessive bail, or delay. In Florida, you can also challenge a search warrant or probable cause. These grounds are discussed in detail in Part B of this Chapter.

(i) Extradition

An extradition is a warrant for arrest demanding that the arrested person be returned to and tried in the state issuing the warrant. If you were arrested in Florida, New York, or Michigan on an extradition warrant from another state, you may contest extradition to that state by petitioning the court for a writ of habeas corpus in the state in which you are in custody.¹² But, the Supreme Court has held that in such circumstances the state court may only consider the following issues: whether the documents from the demanding state¹³ are in order, whether you are a fugitive, whether you have been charged with a crime in the demanding state, and whether you are the person named in the extradition warrant.¹⁴

You may challenge the extradition warrant on the following two grounds:

(1) if you can prove by conclusive evidence that you were not in the demanding state at the time the crime was committed,¹⁵ or

(2) if you have been held longer than allowed by the laws of the state in which you are held.

(ii) Bail

You do not have a constitutional right to bail, but if you are granted bail, it must not be excessive. Florida, New York, and Michigan all permit you to ask for habeas relief if you have been denied bail, or if the bail was excessive.¹⁶ Each state, however, has different criteria for determining when bail is excessive. Make sure to read the state-specific parts of this Chapter and research your state's laws.

(iii) Delay

You may file for habeas corpus if you have been incarcerated without formal charges filed against you for a period of time longer than the maximum your state allows. There are two types of formal charges. The first is called an information. This is a formal charging document. An information may be filed by a prosecutor without a grand jury. In New York, prosecutors usually charge misdemeanors using an information. The second type of formal charge is an indictment, which a grand jury issues.

(b) After Your Conviction

If you are incarcerated after your conviction, you may be able to claim one of the following grounds for habeas relief:

(1) confinement beyond your sentence or a miscalculation of sentence;

(2) violation of fundamental constitutional or statutory rights;

(3) new or void law;

(4) ineffective assistance of counsel; or

(5) discovery of new evidence.

In New York, you can also file on the grounds of unreasonable delay¹⁷ or violation of the conditions of your sentence.¹⁸ Each state has a different approach. For more information on grounds for habeas petitions in particular states, see Parts B (Florida), C (New York), and D (Michigan) of this Chapter.

(c) While You Are On Probation or Parole

You can also file a habeas corpus petition if your parole or probation is withdrawn. No matter which state you are in, you have the right to a probable cause hearing to determine whether you violated the conditions of your parole.¹⁹ You must be given notice of this hearing and you have the right to appear, speak on your own behalf, present witnesses, and cross-examine witnesses testifying against you. This hearing is to determine whether you will be held in custody until the decision on whether to revoke (take away) your parole. You also have the right to a final revocation hearing "within a reasonable time" after you have been taken into custody.²⁰ For more information about parole, see JLM, Chapter 35, "Getting Out Early: Conditional and Early Release," and JLM, Chapter 36, "Parole."

In Florida, you may challenge errors in parole revocation proceedings and orders of the Florida Probation and Parole Commission by petitioning for a writ of habeas corpus.²¹ You may file a habeas petition to challenge the Parole Commission's determinations of presumptive (expected) parole release dates.²² If you are incarcerated after your presumptive release date, you may petition for a habeas corpus writ.²³

Petitions for habeas corpus relief can also be brought in connection with parole revocation hearings in New...