how do you write a writ of habeas corpus, what should u include in it?

Question

in my criminal justice class i have to get myself out of jail by writing a habeas corpus. i was caught with drugs... what exactly should i write to get myself out of jail?

my job is to write my ticket out of jail. im assuming that im incarcerated at cook county jail & i am acting as a "jailhouse lawyer". i have to convince the federal judiciary that my state incarcerationis ungrounded cuz of irregularities if not illegalities in the way that my case was handled at the local level.

the facts of the case:

Quentin B.A. Toughie, u a 24 yr old Afro. American male from RAleigh N.C.. u r arrested by a drug task force in chicago , consisting of 6 sheriffs deputies, 4 municipal officers, 1 fbi agent in a "controlled buy" (reverse sting) operation that took place on wed. night about 11:59 pm on 10-20-99.

u were charged w/ 1 count of possesion, 1 count of posession w/ intent to deliver,1 count of trafficking. the drug u possessed (actually purchased from undercover agents) was about 15 grams of marijuana. u were introduced to the agents via one of ur friends, joe rockhead, who lives in Maywood.

u were "busted" @ the time of purchase,& picked up the extra charges because they had u staked out w/ electronic listening devices (after joe turned u in as a prospect to them) indicating that u intended to make the purchase to c how good the stuff was b4 buying more to sell 2 ur friends.

the wait for the trial in cook county was horrible. the jail @ 26th & california wasnt all that great, the other inmates picked on u (ur only 5'6" & weigh 135 lbs. w/ long twists in ur hair, hazel eyes) u were defended by Ashton P. Edgecroft III, public defender on the south side of chicago, who didnt really sympathize w/ u at all (it seemed he didnt care 4 drug cases) he tried to convince u to waive ur right to a jury trial & accept a plea bargain for 1 yr in statesville penitentiary on all the charges. u held out 4 a jury trial, & surpringly, it didnt take long to put 1 2gether.

an all white jury of cook county residents convicted u to 2 yrs on all the charges, based o what seemd like strong testimony against u by the undercover agents (who blew their cover to testify against u) & the high quality recordings they had of ur conversations bragging about how u were beating the system.

while the state also presented scientific evidence verifying that the substances u purchased were marijuana u were never able to verify this urself via u own scientific testing. nor were u able 2 call any character witness on ur behalf since u were told this would come up in ur pre-sentence investigation report.

however, u had never been in troubl w/ law b4. the only person u were able to talk to 4rm county jail, he impliedu were being "railroaded". the jury only took 5 min to return a unanimous verdict of guilty.

Answer 1

Here is a federal form:
http://www.cacd.uscourts.gov/CACD/Forms.nsf/0b2b50f03ce1d589882567c80058610a/0451090f1c6c50bf882568780001edfa?OpenDocument&Highlight=0,habeas
Here is a state form:
http://www.courtinfo.ca.gov/forms/documents/mc275.pdf

There is probably a similar form for whatever jurisdiction you are supposed to be in. These will show all the necessary allegations, but you need to figure out why you are in illegal custody. (Perhaps a violation of Gerstein v. Pugh?)

ADD: Coragryph's answer brings up another point. He assumed you are using habeas as a post conviction remedy to attack a conviction. I assumed that you were using it as a preconviction remedy to attack unlawful custody. If I am right, the writ would usually be filed in state court (at least first), but would have to show only why the custody is illegal. If he is right, you will have to plead additional facts, such as exhaustion of state remedies, as well as showing why the conviction offends the US Constitution.

ADD 2: So coragryph was right, this is post conviction review. Your statement leaves out one important procedural point, which is that the case was appealed in Illinois. If it was not, you did not exhaust state remedies, and you cannot seek federal habeas. On federal habeas, you can only raise federal issues which were first presented to the highest state court for review. I don't want to do your homework for you, but assuming you get over this hurdle, some areas which seem to be there for argument are the validity of the wire, the lawfulness of an all-white jury, and ineffective assistance of counsel.

Good luck.

Answer 2

It's critical. The right to Habeus Corpus is so well established that it seldom has to be used to criminal cases. I was appointed to do Habeus Corpus cases by our local Judge about 25 years ago and used it frequently in the early 1980's. The sheriff would approach the Judge and tell him that a lower court had incarcerated someone because they couldn't pay a fine, which is unConstituational. The Judge brought me into his office and taught me how to do a Habeus Corpus case and them gave me 10 or 12 cases. The lower court judges were not lawyers and were doing the "30 days or a fine" type of sentencings. All my Writs of Habeus Corpus were granted and the judges learned to quit jailing people who were indigent. One interesting aspect about Habeus Corpus is that I've seen it used in child custody/denial of visitation cases much more recently and haven't see it used much in my state for criminal cases in 20 years. Even though I don't see it used much anymore doesn't mean it isn't needed. Other counties and other states still have to use it frequently. I do think it can be problematic to have lower court judges who are not attorneys serve in the judiciary just because they can win an election. Our Judges who serve in the real courts in my state are appointed on merit and run in non-partisan retention elections every 6 years. They have to get a super-majority to be retained.

Answer 3

Habeas Corpus (aka "The Great Writ") is a challenge to the lawfulness of a detention, and a request to the reviewing (usually) federal court to verify that the legal proceedings which resulted in detention were constitutional.

It's a collateral attack, since you are challenging the proceedings outside the normal line of appeal.

As with any legal brief, you'd want to find case law (or statutes) that support your argument that the trial court made a reversible (non-harmless) error during the procedures.

You say the hypothetical involves being caught with drugs. Does the state have drug laws? Was your hypothetical conduct in violation of them? Did the prosecutor prove the case? Was the punishment assigned within the range allowed by the state statute? Was the sentence proportional to the harm?

The grounds on how you challenge the incarceration are nearly endless, and depend on the details of exacty what happened during the earlier proceedings.

Answer 4

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