Writ of Habeas Corpus Attorney

Many legal terms are Latin phrases, and this important filing in criminal cases is one of them. It translates to “you should have the body.”

A Kentucky resident can challenge being held in custody without a charge, the length of a prison sentence or a condition of confinement by asking that he be brought to court so he can testify and argue that important rights are being violated. These types of actions often fail, but under the right circumstances they may be what stands between freedom and years spent in jail for a defendant.

A writ of habeas corpus comes from English common law. It first appeared in the Magna Carta of 1215, which is a charter agreed to by King John of England and a group of rebel barons. It promised protection for the barons from illegal imprisonment, and access to swift justice. It’s the oldest human right in English-speaking civilization. Habeas corpus is based on the requirement that a government must either charge a person or let him go.

Kentucky Habeas Corpus Rights

The writ of habeas corpus is considered a fundamental tool for safeguarding individual freedom against arbitrary and lawless state action. Article I of the U.S. Constitution spells out the powers of Congress, and Section 9 states, in part, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Federal law 28 U.S. Code § 2241 states in part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions….

. . .

(c) The writ of habeas corpus shall not extend to a prisoner unless—

(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

These proceedings can be filed under state or federal law. Kentucky statute §202A.151 states:

At any time, and without notice, a person detained at a facility, or a relative, friend, guardian,  representative, or attorney on behalf of such person, may petition for a writ of habeas corpus to  question the cause and legality of such detention and request that the Circuit Court issue a writ for release.

A Kentucky Habeas Corpus Proceeding May Result in a Defendant’s Being Released

If there are disputed facts, there may be an evidentiary hearing before ruling on a writ of habeas corpus. The parties can produce evidence and the judge may issue and enforce subpoenas to obtain and examine evidence in the case. If granted, a writ of habeas corpus could result in …

  • Release from custody
  • A reduced prison sentence
  • A court order halting illegal conditions of confinement
  • A declaration of the defendant’s rights

Through a writ of habeas corpus, a prisoner can challenge the fact of their present confinement; but it can’t be used to challenge a finding of guilt, which must be go through the criminal appeal process. If a prisoner wants to challenge the conditions of his or her confinement, he or she may need to file a civil rights lawsuit instead of a motion for writ habeas corpus.

If a defendant wants to remedy violations of their constitutional rights occurring during their confinement, they can file their habeas complaint in either state or federal court.

State courts are often bypassed because at issue are rights under the U.S. Constitution.

Get Help with Your Kentucky Habeas Corpus Filing

If you are concerned that your rights or the rights of a loved one are being violated and think a writ of habeas corpus might be helpful, the Carman Law Firm offers experienced representation in these situations. Dan Carman has practiced law in Kentucky for years, and also served as in-house counsel for an infantry battalion when he was deployed to Iraq as a U.S. Marine. From arrest to appeal, he has the necessary expertise to effectively maneuver your case through the criminal process.