writ of habeas corpus – command that a prisoner (or detainee or probatee) be brought before the court to challenge the legality of their custody and demand their release

     This page contains legal & historical information, including applicable Supreme Court rulings, followed by the official U.S. Courts forms needed to file Writs of Habeas Corpus.  Need more info?  See – what is a writ?


writ of habeas corpus:
[Law Latin ‘that you have the body’]

1. A writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal (habeas corpus ad subjiciendum). In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of

1.) the regularity of the extradition process
2.) the right to or amount of bail
3.) the jurisdiction of a court that has imposed a criminal sentence.

— Abbr. H.C. —  Sometimes shortened to habeas. — aka habeas corpus; great writ. [1]

1. A high prerogative writ of ancient origin, the vital purposes of which are to obtain immediate relief from illegal confinement; to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody; or to obtain a proper custody of persons illegally detained from the control of those who are entitled to the custody of them. 25 Am J1st Hab C § 2.

A generic term in one sense being applicable to each of several different writs, but as used generally, referring to the writ of habeas corpus ad subjiciendum. 25 Am J1st Hab C § 2. [2]

1. Means “you have the body.”  A writ whose purpose is to obtain immediate relief from illegal imprisonment by having the “body” (that is, the prisoner) delivered from custody and brought before the court.  A writ of habeas corpus is a means or attacking the constitutionality of the statute under which, or the proceedings in which, the original  conviction was obtained.  There are numerous writs of habeas corpus, each applicable in different procedural circumstances.  The full name of the ordinary writ of habeas corpus is habeas corpus ad subjiciendum. [3]

     Excerpt from Charles Alan Wright, The Law of Federal Courts 5 53, at 350 (5th ed. 1994) (quoting Secretary of State for Home Affairs v. O’Brien, [1923] AC, 603, 609):

     “The writ of habeas corpus, by which the legal authority under which a person may be detained can be challenged, is of immemorial antiquity. After a checkered career in which it was involved in the struggles between the common-law courts and the Courts of Chancery and the Star Chamber, as well as in the conflicts between Parliament & the crown, the protection of the writ was firmly written into English law by the Habeas Corpus
Act of 1679. Today it is said to be ‘perhaps the most important writ known to the constitutional law of England….

Types of Habeas Corpus:

habeas corpus ad deliberandum et recipiendum [Law Latin ‘that you have the
body to consider and receive’] (17c.) Hist. A writ used to remove a person for trial from one county to the county where the person allegedly committed the offense. Cf. EXTRADITION. [1]  1. A writ of habeas corpus which issues where it is necessary to remove a prisoner in order that he may be tried in the proper jurisdiction — namely, that wherein the act was committed. 25 Am J1st Hab C § 4[2]

habeas corpus ad faciendum et recipiendum[Law Latin ‘that you have the body to do and receive’] (17c.) Hist. A writ used in civil cases to remove the case, and also the body of the defendant, from an inferior court to a superior court. — aka habeas corpus cum causa. [1]  1. A common writ of habeas corpus which issues where a person is sued and arrested in some inferior jurisdiction and is desirous of removing the action into a superior court, commanding the inferior judges to produce the body of the defendant and to state the day and cause of his caption and detainer. 25 Am J1st Hab C § 4. [2]

habeas corpus ad prosequendum [Law Latin ‘that you have the body to prosecute’] (1865) A writ used in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the prisoner is currently being confined. [1]  1. A writ of habeas corpus which issues for the purpose of removing a prisoner in order to prosecute him in the proper jurisdiction, namely, that wherein the act was committed, or to enable him to become the prosecuting witness in a criminal case. 25 Am J1st Hab C § 4. [2]

habeas corpus ad respondendum [Law Latin ‘that you have the body to respond’] (17c.) Hist. A writ used in civil cases to remove a person from one court’s custody into that of another court, in which the person may then be sued. [1]  1. A writ of habeas corpus which issues where one has a claim against another, who is in custody under process of an inferior court, in order to remove the prisoner and prefer the claim against him in the higher court. 25 Am J1st Hab C § 4. [2]

habeas corpus ad satisfaciendum – [Law Latin ‘that you have the body to make amends’] (17c.) English law. In England, a writ used to bring a prisoner against
whom a judgment has been entered to some superior court so that the plaintiff can proceed to execute that judgment. [1]  1. A writ of habeas corpus which issues where a prisoner has had judgment against him in an action, and the plaintiff is desirous of bringing him up to some superior court to charge him with process of execution. 25 Am J1st Hab C § 4

The writ is not available in the United States, because here one court never awards execution on the judgment of another. 25 Am J1st Hab C § 4. [2]

habeas corpus ad subjiciendum [Law Latin ‘that you have the body to submit to’] (17c.) A writ directed to someone detaining another person and commanding that the detainee be brought to court. – Usually shortened to habeas corpus. [1]  1. The ordinary writ of habeas corpus. [2]

habeas corpus ad testificandum – [Law Latin ‘that you have the body to testify’] (17c.) Hist. A writ used in civil and criminal cases to bring a prisoner to court to testify. [1]  1. A writ of habeas corpus, although not a high prerogative writ, its issuance lying in the sound discretion of the court, which issues to remove a prisoner in order for him to bear testimony. 25 Am J1st Hab C § 4. [2]

Habeas Corpus Act1. One of the four great charters of English liberty (31 Car. 2, 1679), securing to English subjects speedy relief from all unlawful imprisonments. The other three great charters are Magna Carta, the Petition of Right (3 Car. 1, 1628), and the Bill of Rights (1 Wm. 81 M. 1689). The Habeas Corpus Act does not apply in Scotland; the corresponding statute is the Criminal Procedure Act of 1701, ch. 62. A statute deriving ultimately from the English statute and enacted in the United States as a constitutional guarantee of personal liberty. [1]  1. An English statute (31 Car. II) passed to remedy a condition of indifference or disregard of the rights of the people which had through royal influence and other causes reached the point where the common law writ became so little respected that it no longer afforded real or substantial benefits to English subjects.

The act had the desired effect, although it introduced no new principle, conferred no right upon the subject and made no change in the practice of the court in granting the writ, but it did correct certain imperfections of the common law writ and tended to make the prisoner’s remedy a speedy one. 25 Am J1st Hab C § 6. [2]


     The Writ of Habeas Corpus, or “Great Writ,” commands an individual or a government official who has restrained another to produce the prisoner at a designated time & place so the court can determine the legality of custody & decide whether to order the prisoner’s release.

    The writ directs a person, usually a prison warden, to produce the prisoner & justify the prisoner’s detention.  If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner’s release.  Habeas corpus relief may be used:

  • to obtain custody of a child.
  • to gain the release of a detained person who is insane, a drug addict, or who has an infectious disease.
  • Usually, however, it is a response to imprisonment, detainment, or probationary writ issued by the criminal justice system.

     An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her.  In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court.  He or she may also may receive an evidentiary hearing to establish evidence for the petition.

     The habeas corpus concept was first expressed in the Magna Charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215.  Among the liberties declared in the Magna Charta was that “No free man shall be seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.”  This principle evolved to mean that no person should be deprived of freedom without due process of law.

     The only reference to the Writ of Habeas Corpus in the U.S. Constitution is contained in

Article I, Section 9, Clause 2:

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.

      Habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all the procedural safeguards & appeals.  For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right.  If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment. [1]

    If there is no legal basis for detention or incarceration, the court orders the release of the prisoner.

Historical Context:

     In English practice, the writ addressed detentions before trial, not defects that might have occurred during trial, but American practice has greatly expanded its sweep & availability.

     The  Great Writ was one of the many imports from England, where Sir William Blackstone described it in his Commentaries on the Laws of England as “the glory of the English law.  The right of citizens to demand review of their incarceration was an essential protection against government abuse, which, Blackstone noted, “does not always arise from the ill-nature, but sometimes from the mere inattention, of government.”  The colonial governments agreed, and, despite the Crown’s position that habeas was not available in the colonies, writs of habeas corpus (literally, “you shall have the body”) were issued before the Revolution.

     In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against “the favorite & most formidable instruments of tyranny.  By 1787, several state constitutions already guaranteed habeas corpus, & there was fairly uniform agreement that it would be one of the basic guarantees in the American Republic.

     At the Constitutional Convention, & the later state ratification conventions, one of the most divisive issues was the failure to ban absolutely any suspension of the writ.  Luther Martin argued that the power would be “an engine of oppression” that could be used by the federal government to declare any state opposition to federal law, “however arbitrary & unconstitutional”, an act of rebellion. Nonetheless, a general consensus emerged: there could be circumstances where the writ had to be suspended in the most extreme conditions of war or invasion.

     Some delegates also believed that the state courts could exercise habeas authority to review the custody of federal prisoners.  Consistent with this understanding, various state courts did exercise habeas jurisdiction over federal prisoners well into the nineteenth century.  State court habeas power over federal prisoners soon lapsed.

Modern Habeas Corpus Law:

     Chief Justice John Marshall concluded in Ex parte Bollman (1807) that the Judiciary Act of 1789 (officially titled “An Act to Establish the Judicial Courts of the United States,”) granted only federal courts the power to issue writs for federal prisoners, & ruled that the Habeas Corpus Clause dealt only with prisoners in federal authority.  The Supreme Court has built the modern view of habeas around this interpretation, effectively preventing any state court from exercising habeas authority over a federal prisoner:

Ableman v. Booth (1859) –  the Taney Court unanimously rejected a state court’s claim of habeas authority over federal prisoners.  

Brown v. Allen (1953) – the Supreme Court reaffirmed the authority of the federal courts over state courts, holding that the Supremacy Clause of the Constitution dictated that federal courts would hear federal claims raised in state courts, even though state courts could not grant release of federal prisoners.

Under What Circumstances Can “The Right To Habeas Corpus” be Suspended?

    One of the most obvious ambiguities in the Habeas Corpus Clause is the absence of an affirmative grant of the right to suspend habeas corpus.  Written in the negative, the clause only described the conditions under which it could be suspended.  While controversial during the ratification debate, it has been generally accepted that a right to suspend the writ is implied in the language. The next ambiguity arises from the fact that the clause does not affirmatively state who can suspend the writ. Originally, Charles Pinckney proposed the clause with the words “shall not be suspended by the Legislature.”  This reference to Congress was dropped in the later debate, allowing some to argue that either Congress or the President could suspend habeas corpus.  However, it is notable that the Committee of Style moved the clause from Article III (dealing with the judicial branch) to Article I (dealing with the legislative branch), suggesting that suspension was viewed as a legislative power rather than an Executive (Presidential) or Judicial power.  

Ex parte Merryman (1861) – President Abraham Lincoln’s unilateral suspension of the writ was met with immense political & judicial opposition until he obtained congressional authorization. 

Congress has suspended the writ
only three times:

  • South Carolina in 1871 – to deal with the Ku Klux Klan.
  • the Philippines in 1905 – in connection with the local revolt.
  • Hawaii – during World War II.

    Conversely, beginning in 1789, Congress passed a number of statutes providing habeas relief for a growing category of prisoners.  Along the way Congress also statutorily granted federal courts the power to issue writs for the release of state prisoners.  Though the first Judiciary Act of 1789 only authorized issuance of the writ for federal prisoners, the writ was made available in federal court to state prisoners through the Habeas Corpus Act of 1867.   Ex parte McCardle (1869).

3 Habeas Corpus Cases came in 1963:

  • Sanders v. United States (1963)
  • Townsend v. Sain (1963)
  • Fay v. Noia (1963).

    In all three cases, the Supreme Court directed lower federal courts to hold evidentiary hearings, allowed for successive claims on the same facts, and held that:

A prisoner is entitled to lodge a habeas petition, even if he failed state law requirements to raise his substantive objectives in a timely manner during trial.

Interpretation – One may file a habeas corpus to object to a fact or allegation that was presented in trial, even if there was no initial objection made to that fact or allegation during the actual trial.

The Antiterrorism and Effective Death Penalty Act of 1996 placed curbs on the filing of successive (multiple) & frivolous (vague or incompetent) petitions, & required federal courts to presume that state court factual determinations are correct.

     With new national security measures following the attacks of September 11, 2001, the legal protections of “the Great Writ” persist.  Congress must declare any suspension of the writ by statute, which it has not done. Accordingly, the writ is available to civilian & military prisoners claiming jurisdictional barriers to their continued detention or incarceration.[2]

U.S. Codes & Official Forms for Filing Habeas Corpus on a State or Federal Prisoner:

    There are three types of forms:

i. State

     This form may be used to enforce U.S. Code Title 18 § 2254 – State custody; remedies in Federal courts in order to challenge the validity of a state judgment of conviction and sentence – download the form:

Download the Form: Petition for Relief From a Conviction or Sentence By a Person in State Custody

ii. Federal:

     This form may be used to enforce U.S. Code Title 28 § 2255. Federal custody; remedies on motion attacking sentence if you are challenging the validity of a federal judgment of conviction and sentence – download the form:

Download the Form: Motion to Vacate/Set Aside Sentence

iii. Challenge Your Sentence or Illegal Detainment:

     This form may be used to enforce U.S. Code Title § 2241. Power to grant writ in cases where any of the following applies to you:

  • you are a federal prisoner and you wish to challenge the way your sentence is being carried out (for example, you claim that the Bureau of Prisons miscalculated your sentence or failed to properly award good time credits)
  • you are in federal or state custody because of something other than a judgment of conviction (for example, you are in pretrial detention or are awaiting extradition); or
  • you are alleging that you are illegally detained in immigration custody.

Download the Form: Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241


     “Why are we proud? We are proud, first of all, because from the beginning of this Nation, a man can walk upright, no matter who he is, or who she is. He can walk upright and meet his friend–or his enemy; and he does not fear that because that enemy may be in a position of great power that he can be suddenly thrown in jail to rot there without charges and with no recourse to justice. We have the habeas corpus act, and we respect it.

– Dwight D. Eisenhower [3]

      “Freedom of religion, freedom of the press, freedom of person under protection of habeas corpus; and trial by juries impartially selected, these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.

– Thomas Jefferson, First Inaugural Address [4]

     “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.

– Thomas Jefferson [5]

We’re using the above graphic owned by Hasbro, creators of Monopoly, in accordance with Fair Use.


[1]: About Habeus Corpus:  http://legal-dictionary.thefreedictionary.com/Habeas+Corpus

[2]: The Heritage Guide to The Constitution, “Habeas Corpus”: www.heritage.org/constitution/#!/articles/1/essays/61/habeas-corpus

[3]: Remarks of President Eisenhower after receiving America’s Democratic Legacy Award at the B’nai B’rith Dinner, in honor of the 40th Anniversary of the Anti-Defamation League Mayflower Hotel, Washington, D.C., November 23, 1953.   7:54 P.M. E.S. T.: www.eisenhower.archives.gov/education/bsa/citizenship_merit_badge/speeches/bnai_brith_dinner.pdf

[4]: The Avalon Project  at Yale Law School: “Thomas Jefferson First Inaugural Address”, March 4, 1801: http://avalon.law.yale.edu/19th_century/jefinau1.asp

[5]: National Archives, Founders Online, “From Thomas Jefferson to Archibald Hamilton Rowan, 26 September 1798”: https://founders.archives.gov/documents/Jefferson/01-30-02-0368


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