Jurisdiction: Habeas Corpus

The term habeas corpus refers most commonly to the writ of habeas corpus ad subjiciendum, which directs the custodian of a prisoner to bring that prisoner before a court and explain the reasons for his or her confinement. A writ of habeas corpus is a challenge to the legality of a prisoner's detention and does not directly or necessarily entail an inquiry into the prisoner's guilt or innocence. After examining the reasons for confinement, the court that issued the writ may release the prisoner or remand the prisoner into custody. The "great writ of liberty," as it is often called, is a judicial remedy aimed at preventing the arbitrary use of executive power to imprison individuals without just cause.

The “Great” Writ

The writ of habeas corpus . . . is known as “the Great Writ.” It generally is a procedural remedy commanding a custodian, such as a sheriff, to bring a detained party, such as a prisoner, before the court to show cause for the detainment and to prove whether the detainment is lawful or justified. If the detainment is not lawful or justified, the detained party may be released.

State custody you must go through State remedies for post conviction relief first.


28 U.S. Code § 2254 - State custody; remedies in Federal courts 
































H.C. Preiser v. Rodriguez411 U.S. 475 (1973)


484 common law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody


"[t]he writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."


habeas corpus ad subjiciendum -- the writ used to "inquir[e] into illegal detention with a view to an order releasing the petitioner." 


"[t]he writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."


But, over the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction


whether the petitioner's challenge to his custody is that the statute under which he stands convicted is unconstitutional



Writ of Habeas corpus is for the court to decide the legality of the detention or imprisonment where reasons for your arrest and detention must be shown. Reasons for the law not because it is illegal.


Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas proceedings. There are two prerequisites for habeas review: the petitioner must be in custody when the petition is filed, and a prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review. Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction. The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf.

Incarcerated, habeas corpus is seeking freedom from physical restraint, freedom from unreasonable laws that authorize government police power.


Constitutional limitation of police power is that the use police power to be reasonable and necessary, to protect the rights of others, public morals, health and safety.



In custody means more then incarceration. Out on bond, probation, supervised release. Who ever has custody the state's US Attorney Office will respond.  § 2241power to grant writ  § 2242. Application.  § 2243 Issuance of writ; return;

hearing; decision  § 2244 Finality of determination





Can court rules violate federal law regarding who can file in behalf of a prisoner 2255 motion to vacate conviction?

28 U.S.C. § 2242  “Application for a writ of habeas corpus shall be in writing signed . . . by someone acting in his behalf."

Court “Rule 2(b)(5)  Court “Rule 2(b)(5) of the Rules Governing Section 2255 Proceeding for the United States District Court requires a § 2255 motion to ‘be signed under the penalty of perjury by the movant or by a person authorized to sign it for the movant.’”

28 U.S C. § 2255 (e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 


  Court Rule 2(b)(5) violates the 28 U.S C. § 2255 (e). This court rule 2(b)(5) has taken the word “authorized” out of context as it is applied in Title 28 U.S C. § 2255 (e).














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