Habeas corpus is a legal action where a person challenges the basis for their confinement. It's used by a person who is held in custody by a governmental authority. Habeas corpus is like a demand that the government show a valid reason for detaining the person. A common example is someone in prison after conviction. The prison warden is the authority "confining" him.

A habeas proceeding begins with the filing of a petition for writ of habeas corpus. A writ of habeas corpus is an order from a court to a government official. It requires that the person be brought to the court. The court then determines whether he is being lawfully held or if he should be released from custody.

Sometimes an evidentiary hearing is required in habeas corpus proceedings. An evidentiary hearing is a formal examination of the charges brought against someone.

Failure to Develop Factual Basis of Claim in State Court

If a petitioner failed to develop the factual basis of a claim in a state court proceeding, no evidentiary hearing will take place unless:

  • The claim relies on a new rule of constitutional law
  • The claim relies on facts that couldn't be discovered earlier
  • The facts underlying the claim establish convincing evidence that the petitioner would not have been found guilty of an offense if there wasn't a constitutional error

Evidentiary Hearing Required if Disputed Facts

If there aren't any disputed important facts, the court may resolve the legal issues and decide whether to deny or grant relief to the petitioner. If important factual issues are in dispute, however, the petitioner's entitlement to relief depends on the resolution of those disputed factual issues. This is when the need for an evidentiary hearing comes in.

Evidentiary Hearing Procedure

At the evidentiary hearing the court may hear evidence from both sides. The court has the authority to enforce subpoenas and to do other things necessary so there is a full and fair hearing and determination of the case.

When an evidentiary hearing is required in a habeas corpus proceeding in an appellate court, the court has two options:

  • It may appoint a referee to take evidence and make recommendations as to the resolution of disputed factual issues
  • It may make the order to show cause returnable before the trial court

Referees

A referee's factual findings are upheld if they are supported by substantial evidence. The referee's resolution of mixed questions of law and fact and the conclusions of law are subject to independent review by the court.

Order to Show Cause Returnable

An order to show cause that is returnable before the trial court transfers the entire habeas corpus proceeding to the trial court. The trial court then conducts the evidentiary hearing. The trial court will either grant or deny relief based on the law and its determination of the facts.

Relief

The form of relief usually granted in a habeas proceeding is release from custody. However, a petitioner may get relief from illegal conditions of confinement or obtain a declaration of rights.

Attorney Must be Appointed

An attorney must be appointed when an evidentiary hearing is required.

Questions for Your Attorney

  • Can a petitioner refuse to have an evidentiary hearing?
  • Will an evidentiary hearing be held if the petitioner requests one?
  • Can a petitioner be granted relief other then release from custody?