Habeas Corpus

What is Habeas Corpus?  Can I file a petition for my case?     

Habeas corpus petitions allege that an individual’s custody is unconstitutional based upon what occurred prior to, or during, the individual’s trial or plea hearing. Habeas corpus is a complicated process with many possible claims that could lead to relief from convictions and sentences.  Attorneys at McIntyre & Associates have decades of experience in identifying winning claims and litigating habeas corpus actions.  We have the knowledge and the expertise to investigate, draft, and litigate habeas corpus actions in Georgia state courts.    

Please browse the information on Georgia habeas corpus and federal habeas corpus litigation to learn more information about habeas corpus relief.  Filing and litigating a habeas corpus petition is a complicated process, and a decision to file a petition for habeas corpus should not be considered lightly.  With very few exceptions, you only have one chance to file a Georgia habeas corpus petition. 

Contact McIntyre & Associates to request that our experienced attorneys evaluate your case for potential claims to be raised in either a Georgia or federal habeas corpus petition. 

HABEAS CORPUS

• Who can seek relief?

• Statute of Limitations

• Jurisdiction  

• Procedure

• Appeal

• Federal Habeas Corpus

Who can seek relief?

State habeas corpus relief may be sought by the filing of a state habeas corpus application by any individual imprisoned as a result of a sentence imposed by a Georgia court, that individual contending that the individual is in custody as the result of the denial of the individual’s state or federal constitutional rights. State habeas corpus relief may also be available to an individual who is not in physical custody but who is suffering from adverse collateral consequences (e.g., being on parole or probation) as a result of the individual’s conviction and/or sentence. 

Statute of Limitations

• For felony convictions which became final on or before July 1, 2004, the action must have been filed on or before July 1, 2008.
• For felony convictions which became or become final on or after July 1, 2004, the action must be filed within four years of the conviction having become final.
• For most misdemeanor convictions, the action must be filed within one year of the conviction becoming final.  For misdemeanor convictions of traffic offenses, the action must be filed within 180 days of the conviction becoming final.

Jurisdiction

Superior courts have exclusive jurisdiction of state habeas corpus actions.  If the petitioner is in custody in the State of Georgia, venue lies in the county in which the petitioner is being detained (i.e., in the county in which the prison is located).  If the petitioner is in physical custody in another state or under the authority of the United States, venue lies in the county in which the conviction was imposed.  If the petitioner is not in physical custody, venue lies in the county in which the conviction was imposed. 

Procedure

Once a Georgia habeas corpus application is filed, the Attorney General’s Office files a response to the application.  Next, if necessary, a hearing is scheduled before a superior court judge. The possible results after a hearing on the Georgia application for writ of habeas corpus include the judge vacating the conviction and sentence or the judge affirming the conviction and sentence. In Georgia, habeas corpus actions are governed by the provisions of O.C.G.A. §9-14-40 through §9-14-53. With a few exceptions, a petitioner only has one opportunity to obtain relief through a state habeas corpus action. Any grounds that are not raised in the original petition or the amended petition will be deemed waived.

Appeal

The Supreme Court of Georgia has exclusive jurisdiction over appeals in habeas corpus actions brought pursuant to O.C.G.A. §9-14-40 et seq..

Federal Habeas Corpus

Federal habeas corpus actions challenge a conviction or sentence on the ground that it was obtained or imposed in violation of the federal constitution. Where the conviction or sentence arises from a state court proceeding, habeas corpus actions can be pursued via 28 U.S.C. §2254. Where the conviction or sentence arises from a federal court proceeding, habeas corpus actions can be pursued via 28 U.S.C. §2255.

Any petition for federal habeas corpus relief must comply with a one year statute of limitations. The one year period begins to run from the date of conviction or when the case is affirmed on appeal. Any time spent litigating claims in state postconviction proceedings is excluded from the one year period. Except under very unusual circumstances, an individual is allowed one and only one opportunity to seek federal habeas corpus relief. Successive petitions are for the most part barred.