California Criminal Defense Blog

A writ or petition for habeas corpus in California is a defense motion to try to convince the courts that a person is being wrongfully imprisoned.

We get calls frequently from family members and loved ones asking if habeas corpus may be an avenue to getting someone released. It can be, but usually only in very limited circumstances.

There are two main considerations in evaluating the viability of a habeas corpus petition: timing and grounds.

In terms of timing, a habeas petition is only timely when all other remedies have been exhausted. Basically what this means is that the appeals process is over. If it is a recent conviction and there is still an opportunity to file an appeal, courts will want a prisoner to take the appeals route before taking the habeas route.

Second, there must be grounds for the motion ... usually a new issue that did not exist at the time of the appeal. This typically would be significant newly discovered evidence, or a change in the law that decriminalizes the conduct.

As you can see, the circumstances for a successful habeas petition in California are fairly narrow. But when the circumstances are right, it can be an effective way to serve justice by getting a wrongfully imprisoned person out of custody.

On December 6th, the 9th Circuit Court of Appeal will hear oral argument on the very controversial Proposition 8…the proposition that banned same-sex marriage in California. Prop. 8 was declared unconstitutional this past August. So as you can imagine, the caliber of the California appeals attorneys are of the utmost importance to all those who are personally invested in this outcome.

A good California appeals lawyer not only knows the appellate issues inside and out, but has also studied the court…that is, the judges who will be on the three-judge panel. The appellate attorney will research how the judges conduct business, the types of arguments that win favor, and the personalities of the panel.

If the California appeals attorney hasn’t done his/her homework, he/she may stand little chance of winning. Yes, appellate law is supposed to be decided on the issues. However, when those issues aren’t clearly and concisely presented, or are presented in an overly arrogant or offensive manner, the issues sometimes get confused, possibly even set aside.

And the truth of the matter is that whether the case is as publicized as the Proposition 8 appeal or whether it is a personal appeal, of which only you and the opposing party are aware, the importance of having a skilled California appeals attorney is the same. In fact, it can make all the difference in the world.